UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


■0iHO'oa3'i<->i 

402qidS  €S6  0a  616 

G'^33  Ti  KlUOtoSTfl 


h^"    ^    \<* 


9l9to923SPltxer 
TOLEDO.  OHIO. 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/approvedformstakOOkink 


ELLSWORTH  M.  CEARO 

ATTORNLY-AT-LAW 
919  to  923  Spitz**- 

APPROVED  FORMS,  TAKEN  FROM      toledo.  oma 
ACTUAL  CHARGES,  OF 

INSTRUCTIONS 
TO  JURY 

BOTH  CIVIL  AND  CRIMINAL 

(under  THE  OHIO  code) 


By 
EDGAR  B.  KINKEAD 

(Columbus,  Ohio) 

Judge  Court  of  Common   Pleas;  Professor  of  Law,   Ohio  State 

University 


//  there  is  anything  eminently  and  exclusively 
our  own,  it  is  our  system  of  Legal  Procedure." 

(Ranney) 


Cincinnati,  Ohio 

THE  W.  H.  ANDERSON  COMPANY 

Law  Book  Publishers 

1914 


s 


Copyright,  1914, 

BY 

THE  W.  H.  ANDERSON  CO. 


PREFACE 

One  of  the  most  difficult  and  important  tasks  in  trial  work 
is  that  of  preparation  of  Instructions  to  the  Jury.  It  may 
not  be  inappropriate  to  observe  that  this  fact  is  more  keenly 
appreciated  by  a  trial  judge.  While  it  may  become  easier 
with  experience  the  difficulty  and  importance  will  constantly 
appear  in  new  cases. 

The  forms  of  instructions  contained  herein  have  in  the 
main  been  taken  from  the  original  charge  of  the  trial  judge, 
using  his  language  excepting  with  slight  modifications.  They 
have  been  taken  from  printed  records,  and  from  transcripts 
from  original  cases  that  may  not  have  gone  to  the  court  of  last 
resort.  A  note  at  the  end  of  each  form  indicates  the  case 
from  which  it  is  taken,  and  the  judge  who  gave  it,  and  if  it 
has  been  approved  the  fact  is  stated.  There  is  a  marked  dif- 
ference between  a  form  taken  from  an  actual  charge  and  one 
framed  in  the  abstract  from  decisions.  Both  kinds  appear  in 
the  volume. 

E.  B.  KINKEAD. 

June,  1914. 


TABLE  OF  CONTENTS 


part  n. 

INSTRUCTIONS  TO  JURY— CIVIL  AND  CRIMINAL. 


CHAPTER  LXIV. 

Province  of  Court  and  Jury, 
section  page 

1456.  Relation  of  court,  jury  and  attorney — Zeal  of  counsel 1097 

1457.  Introductory  in  criminal  case — Provision  of  jury  to  ascertain 

truth — Province   of   court — Of   attorneys 1098 

1458.  Appropriate  remarks  in  the  opening  of  a  charge 1100 

1459.  Another   form   of   opening   statement 1101 


CHAPTER  LXV. 
Abortion. 

1460.  Abortion   by   physician — General   charge 1104 

1461.  Elements   of   the   crime 1107 

1462.  Testimony   of    husband    as    accomplice 1108 

1463.  Belief  that  uterus  contained  dead  foetus 1108 

1464.  Presumption   of   innocence   continues    until   verdict 1108 

1465.  Unwise  to  convict  on  uncorroborated  testimony  of  accomplice.  .  1109 

1466.  Reasonable    doubt    as    to     intent — Reasonable     probability     of 

innocence  creates  reasonable  doubt 1109 


CHAPTER  LXVI. 
Agency. 

1467.  What   constitutes    an    agent 1 1 10 

1468.  Special    or   general    agent 1110 

1469  Principal  estopped  to  deny  agency,  when  person  placed  in  posi- 
tion from  which  another  is  justified  from  usage  and 
nature  of  business  in  believing  agent  authorized 1111 

V 


Vi  TABLE   OP    CONTENTS. 

SECTION  PAGE 

1470.  No  ratification  without  knowledge  of  facts 1111 

1471.  Ratification  with  knowledge — Cannot  disavow  part 1111 

1472.  Right  to  recover  where  double  agency  known  to  principal 1112 


CHAPTER  LXVII. 
Aider  and  Abettor. 

1473.  Must  be  conspiracy  or  overt  act 1113 

1474.  One  present  without  knowledge  of  conspiracy 1113 

1475.  Aider  and  abettor — Charge  in  case  of  homicide 1114 


CHAPTER  LXVIII. 
Alibi. 

1476.  Alibi    defined— Proof    thereof 1116 

1477.  Character    of    proof 1116 

CHAPTER  LXIX. 
Alienation  of  Affections. 

1478.  Consortium — Right  of    1118 

1479.  Malice  as  an  ingredient  of  the  wrong 1119 

1480.  Marital  right  gives  exclusive  right  of  intercourse 1119 

1481.  Act  or  acts  of  defendant  must  be  malicious 1119 

1482.  Conduct   of  husband 1120 

1483.  Acts  of   parents — Rights  and   liabilities 1121 

1484.  Alienation  by  adulterous  relations  with  wife 1122 

1485.  Alienation    of    affections 1126 

1486.  Claim  of  mistreatment  of  wife  by  husband 1130 

1487.  Connivance  of  or  encouragement  by  plaintiff  of  alienations — Or 

his  own   misconduct  bars   recovery 1131 

1488.  Preponderance  of  evidence  only,   essential 1131 

1489.  Burden   and  character  of  proof  of  adultery 1132 

1490.  Measure    of    damages 1132 


CHAPTER  LXX. 

Animals. 

1491.  Owner  of  domestic  animal  not  liable  for  injury  when  it  is 
rightfully  where  it  may  be,  unless  it  is  vicious — Rule 
otherwise  when  animal  breaks  close  of  another. 1134 


TABLE   OF    CONTENTS.  yii 

SECTION  PAGE 

1492.  Liability   of   owner    of   domestic    animal   trespassing   on    lands 

of     another 1 1 3.5 

1493.  Ferocious    dog    at    large — Knowledge    of    its    character — What 

constitutes    keeping   of 1135 

1494.  Scienter — Proof    of    MM 

1495.  Defense  that  dog  fastened  on  premises 1137 

1496.  Liability  of  tresspasser  leaving  gateway  so  horses  escape  into 

another  field,  where  injury  done  in  fighting  with  strange 
horses    1137 


CHAPTER  LXXI. 
Assault  and  Battert. 

1497.  Assault   and   battery   defined 1142 

1498.  Assault   by    teacher    on    pupil 1143 

1499.  Assault  and  battery  by  railroad  employee  or  flagman 1145 

1500.  When    committed    in    self-defense    1149 

1501.  Force  used  in  repelling  assault,  not  nicely  measured 1150 

1502.  Defense  of  self  and  child — Force  used 1150 

1503.  How  far  one  may  go  in  protection  of  self  or  child 1151 

1504.  One  provoking  assault  may  recover  if  he  afterwards  withdrew.  1151 

1505.  Damages   recoverable   in   civil   action 1152 

1506.  Effect  of  conviction  in  criminal  prosecution  on  civil  damages.  1153 

CHAPTER  LXXII. 
Assault  with  Intent  to  Kill. 

1507.  Assault  with  intent  to  kill — Complete  charge,  embracing 1155 

1508.  Assault  with   intent  to  kill — Includes  lesser  grades 1163 

1509.  Assault — Battery — Intent    1 163 

CHAPTER  LXXIII. 
Attorneys. 

1510.  Breach   of  contract   of   employment — Contingent    fee   in   collec- 

tion   of    account 1 164 

1511.  Presumption  from  employment  of  an  agreement  to  pay  reason- 

able   compensation 1 164 

1512.  Action  to  recover  fees,  governed   by   same   principles  as  other 

employments     1 165 

1513.  Quantum   meruit  when   no   sj>ecial   contract 1165 

1514.  Facts  to  be  considered  in  determining  value  of  services 1165 

1515.  Expert  opinion  aa  to  value  of  services 1166 


Viii  TABLE    OF    CONTENTS. 

CHAPTER  LXXIV. 

Automobiles — Injuby   by. 
section  page 

1516.  Relation  of  employer,  or  owner  and  chauffeur 1170 

1517.  Liability  of  owner,  who  hires  auto  with  his  licensed  chauffeur, 

to  another  to  be  used  for  definite  time,  and  for  specified 
fee    1170 

1518.  Master  loaning  servant  to  another  becomes  liable  for  his  acts.  1171 

1519.  Liability  of  garage  owner  who  hires  out  automobile  with  driver, 

where  hirer  exercises  no  control  over  driver  except  to 
give  directions  as  to  route 1172 

1520.  Duty  of  one  operating  a  sight-seeing  automobile 1172 

1521.  Liability  of  owner   for   injury   from  acts   of  driver   alleged  to 

have  taken  car  under  express  or  implied  authority  for 
taxi-service,  denied  by  owner 1 172 

1522.  Ownership   of   machine   and  operation   thereof  by   servant  em: 

ployed  for  that  purpose  create  prima  facie  liability — But 
under  general  denial  the  burden  is  on  plaintiff  to  prove 
that  such  servant  was  engaged  in  business  or  service  of 
master     1177 

1523.  Injury    to    person    while    crossing    street    from    collision    with 

automobile  running  at  high  rate  of  speed — Contributory 
negligence  of  plaintiff — A  complete  charge 1178 

1524.  Driver  must  anticipate  meeting  pedestrian  at  street  crossing.  1185 

1525.  Duty  of  driver  to  give  signal  at  street  crossing,  and  to  adopt 

other  precautions    1 186 

1526.  Duties  of  drivers  as  to  speed — The  statute 1186 

1527.  Same — Violation   of   statute  prima   facie   negligence — Not  con- 

clusive     1 187 

1528.  Duties   of   drivers   in    meeting    others   driving    in   the    street — 

Reasonable   look-out — Control   of  machine 1187 

1529.  Driver,  keeping  lookout,  having  car  under  reasonable  control, 

may  assume  pedestrian  will  not  suddenly  turn  backward.  1188 

1530.  Pedestrian  going  unexpectedly  in  front  of  auto 1189 

1531.  Warnings  given   pedestrian   causing  bewilderment 1189 

1532.  Driver  running  excessive  rate  of  speed  approaching  crossing — 

Gives  no  signal — Pedestrian  placed  in  sudden  danger 
— Not  negligent  if  injudicious  choice  made  between 
hazards     1190 

1533.  Automobile    lawful    means    of    conveyance — Equality    of    right 

between  driver  and  pedestrian — Another  form 1192 

1534.  Correlative  duties  of  driver  of  auto  and  pedestrian 1192 

1535.  Ordinance    as   to   passing    vehicles    and    carrying    lights — How 

considered     1 193 

1536.  Operator    of    auto    may    assume    persons    at    street    crossing 

will  exercise  ordinary  care 1 194 


TABLE   OF    CONTENTS.  IX 

SECTION  PAGE 

1537.  Driver  of  auto  and  of  other  vehicle  both  negligent — Concurrent 

negligence — Proximate    cause 1 194 

1538.  Whether  driver  of  auto  acting  as  agent  or  servant  of  owner — 

Or   whether    person    hired    it    for    himself    and    operating 

it   for   himself    alone 1 1 95 

1539.  Equality  of   right  of  street  railway   and   driver  of   automobile 

— Relative  duties  of  each — Familiarity  of  driver  with 
crossing     1 19(5 

1540.  Duty  of  driver  of  auto  at  railroad  grade  crossing 1198 

1541.  Driver   of   automobile   placed   in   sudden   peril   through   neglect 

of  another    H9» 

1542.  Injury  by  collision  between  two  automobiles — Plaintiff  charges 

excessive  speed — Defendant  counterclaims  for  injury  to 
his  machine  by  same  collision 1 199 

1543.  Injury  to-  passenger  in  automobile,  the  guest  of  one  who  hires 

from  owner  who  furnishes  chauffeur  to  drive — Liability 
depending  upon  contract  of  hiring,  as  well  as  upon 
whether  driver  is  engaged  in  the  service  and  business  of 
the   owner    1212 


CHAPTER  LXXV. 
Bailments. 

1544.  Loss  of  goods  by  negligence  of  storage,  company,  whether  oc- 

casioned by   natural   decay,  or  by   negligence   in  mainte- 
nance  of   temperature    1225 

1545.  Liability  of  garage  keeper   for   safety   of   automobile    intrusted 

to    him    1227 

1546.  Proprietor     of     garage     bound     to     exercise     supervision     over 

employees    to    guard    against    wrongful     taking    out    of 
stored   auto    1228 

1547.  Liability  of  garage  keeper  for  allowing   customer's   automobile 

to  be  taken  out  without  authority 1228 


CHAPTER  LXXV  I. 
Banks — Bank   Deposits — Bank   Checks. 

1548.  Cashier  authorized  to  receive  deposits — Authority  of  president 

to  do  so  by  custom  or  usage 1230 

1549.  Measure   of   care   required   of   directors   of   bank,    in    respect  to 

acts  of  its   officers 1231 

1550.  Bank  estopped  t/>  deny  authority  of  officers 1232 

1551.  Relation   of  bank   directors  to   public — Liability    for   defaulting 

officers     1232 


X  TABLE   OF    CONTENTS. 

SECTION  PAGE 

1552.  Liability  of  drawer  of  check 1233 

1553.  The  nature  of  a  check — Rules  regulating  rights  and  liabilities 

of   parties    thereto 1233 


CHAPTER  LXXVII. 
Bastardy. 

1554.  Bastardy — Instructions 1235 

1555.  Reputation  of  prosecutrix  for  truth  and  veracity 1237 

1556.  Reputation  of  defendant  for  virtue  and  chastity 1237 

CHAPTER  LXXVIII. 
Bigamy. 

1557.  Bigamy — Defined — The    statute 1239 

1558.  Remarriage   of    wife    before   seven    years   absence    of    husband, 

without   divorce    1239 

Common  law  marriage  not  basis  for  prosecution  for  bigamy..  .1240 


1559. 


1560.  Domicile  of  divorced   parties 1240 

CHAPTER  LXXIX. 
Bills   and  Notes. 

1561.  Burden   of   proof  when  consideration   attacked 1241 

1562.  Genuineness  of   signature    1241 

1563.  Purchase  before   maturity  without   notice  of  illegal   considera- 

tion     1242 

1564\.     Consideration — Delivery — Denial     of     execution — Alteration — 

Expert  testimony  as  to  signature 1243 

1565.  Transfer   of   note    after   maturity 1245 

1566.  Endorsement  in  blank — Transfer  before  maturity 1245 

1567.  Liability    of    surety     on    note — How    revived — Effect    of     sub- 

sequent   promise    ■ 1246 

1568.  Extension    of     note — Consideration — Payment     of     interest     in 

advance    1247 

1569.  Alteration    of    note — What    constitutes — Adding    words    "with 

interest  at  per  cent." 1247 

1570.  Alteration — By  adding  name  of  third  person — Whether  material 

or    not    1247 

1571.  Alteration  by   inserting  words   "to  be  paid   annually" 1249 

1572.  Demand  and  notice  essential  to  hold  endorser 1250 

1573.  Endorsement    of    note — Notice 1250 

1574.  When  maker  of  note  entitled  to  demand 1251 

1575.  Forgery  as  a  defense — Estoppel  to  set  up 1251 


TABLE   OF    CONTENTS.  XI 

CHAPTER  LXXX. 

Breach  of  Promise  to  Marry, 
section  page 

1576.  Contract    of    marriage 1252 

1577.  Breach  of  promise  of  marriage 1252 

157S.     What  amounts  to  a  breach — Essentials  as  to  time 1257 

1579.  Promise  made  in  consideration  of  sexual  intercourse 1259 

1580.  Acts  of  preparation  for  marriage 1260 

1580a.  Measure   of   damages 1261 

CHAPTER  LXXXI. 
Bribery. 

1581.  Bribery — State    official — Aider    and    abettor — Complete    charge 

embracing     1262 

1582.  Solicitation    of    a   bribe 1279 

1583.  Reputation  of  accusing  witnesses 1284 

1584.  Bribery  of  city  official — Form  of  complete  charge  in  a  criminal 

case — Embracing    preliminary    questions 1287 

CHAPTER  LXXXII. 
Broker's  Real  Estate  Commission. 

1585.  Real  estate  commission — Action   for   recovery  of 1306 

1586.  Entitled  to  commission  though  owner  declines  to  sell 1308 

1587.  Entitled    to    commission    when    owner    enters    into    enforceable 

contract  with  purchaser 1308 

1588.  When  broker  a  director  of  corporation  purchasing  property ...  1309 

1589.  Broker  must  show   that   he  accomplished   all   required   of   him 

by  the  employment,  that  his  efforts  were  efficient  cause 
of  sale — If  not,  and  owner  makes  sale,  no  recovery  can 
be  had    1309 

1590.  Entitled    to    compensation    when    purchaser    produced    though 

owner  conducts  negotiations  and  sells  on  different  terms.  1310 

1591.  Right    of     agent     to     commission     when     several     employed — 

Purchaser  produced  must  be  client  of  agent  first  conduct- 
ing   negotiations 1311 

CHAPTER  LXXXIII. 
Building  Contracts. 

1592.  Substantial     departure     therefrom     without    consent — Recovery 

for  extras   1312 

1593.  Failure    to    do    work     in     workmanlike     manner    according    to 

contract     1313 


Xii  TABLE   OP    CONTENTS. 

SECTION  PAGE 

1594.  Substantial   performance,  except  slight  deviations 1314 

1595.  Deduction  for  unfinished  parts 1314 

1596.  Owner  estopped  by  conduct  in  acquiescence   in  work  not  done 

according   to  contract 1314 

1597.  Same — Acts   showing  knowledge   of  departure   from  contract. .  1315 

1598.  Same — Settlement  without  fraud  or  mistake 1315 

1599.  Contracts    as    to   extras 1316 

1600.  Substantial   performance  of  contract 1317 

1601.  Extras — Whether  contract  express  or   implied   or  work   volun- 

tarily   done    1318 


CHAPTER  LXXXIV. 

BURGLARY. 

1602.  Burglary   and   larceny — Force   necessary   in 1321 

1603.  Burglary — Degree  of   force 1322 

1604.  Burglary  of  a  chicken  or  henhouse 1322 

1605.  Burglary  of  dwelling   house 1323 

1606.  Maliciously  breaking  and  entering 1323 

1607.  Breaking  and   entering 1324 

1608.  Burglary   of   inhabited   dwelling   house 1324 

1609.  Must  be   in   night  time 1325 

1610.  Intent  to  steal 1325 

1611.  Intent  to  steal  from  railroad  car 1326 

1612.  Burglary  of  railroad  car — Proof  of  incorporation  not  necessary .  1326 

1613.  Entry  into  car , 1327 

1614.  Complete   instructions  to  jury  in  charge  of  burglary  of  store- 

house   embracing 1327 


CHAPTER  LXXXV. 
Common  Carriers  of  Freight. 

1615.  Common    carrier    denned 1334 

1616.  Common  law  rule  of  liability  of  common  carrier 1334 

1617.  Act  of   God   defined — Inevitable   accident 1334 

1618.  Liability  of  express  company  for  loss  of  horse  in  shipping 1336 

1619.  Limiting  liability  by  special  contract — Burden  of  proof 1343 

1620.  Limiting  common-law   liability — Burden  upon  carrier   to   show 

loss  within  an  exception 1343 

1621.  Xot    an    insurer    as    to    time — Delay    caused    by    unavoidable 

accident    1344 

1622.  Duty  of  carrier  as  to  delivery  of  goods 1344 

1623.  Nondelivery    of    property — Presumptive    evidence    of    loss    by 

negligence    1345 


TABLE   OF    CONTENTS.  xiii 


SECTION- 


PAGE 


1624.  Duty  of  express  companies  as  to  delivery  of  goods 1345 

1625.  Carrier  of  goods — Rule  as  to  limitation  of  liability 1346 

1626.  Liability  by  contract  for  loss  on  connecting  lines 1346 

111:27.     Duty  with  regard  to  baggage — Delivery,  etc 1346 

1628.  Liability   in   absence  of  special  contract 1347 

1629.  Contract  for   transportation   of  vegetables I347 

1630.  Delay    in    delivery    of    goods — Exempting    liability    in    bill    of 

lading    1343 

1631.  Bill    of   lading — Effect   of    between   carrier   and    shipper — Con- 

ditions in — Waiver  of 1349 

1632.  Railroad  company — Duty  to  furnish  cars  for  transportation.  ..  1350 

1633.  Same,  continued — Duty  of  company   to  place   cars   in  suitable 

places    for    unloading 1351 

1634.  Same  continued — Duty  of  company  to  provide  side  tracks.  ...  1352 

1635.  Same   continued — May    make    reasonable    rules   concerning    the 

car  service   I353 

1636.  Same  continued — Reasonableness  of  rules — How  determined.  ..  1353 

1637.  Same    continued — Recovery    for    car    service — Effect    of    rules 

regulating    charges    for    car    service   beyond    the    period 
allowed  for  unloading 1353 

1638.  Carrier  bound  to  use  ordinary  care  in  shipment  of  live  stock 

when   there    is   delay 1355 

1639.  Cold  weather— Not  act  of  God 1355 

1640.  Baggage — What    constitutes 1356 

1641.  Baggage — Liability  of  carrier,  that  of  an  insurer 1356 


CHAPTER  LXXXVI. 
Compromise,  Settlement  and  Release. 

1642.  Compromise   of  cause   without  knowledge   of   counsel — Claimed 

to  have  been  induced  by  fraud — Burden  and  proof 1357 

1643.  Claim  of  void  release  of  cause  for  personal  injury  may  be  set 

up  in  reply  and  submitted  to  jury — Instructions 1358 

CHAPTER  LXXXVII. 
Contracts. 

1644.  Meeting    of    minds •. 1362 

1645.  Contract    by    ratifications    when    no    meeting    of    minds    in    the 

beginning    1362 

1646.  Consideration    1363 

1647.  Contracts    express    or    implied 1363 

1648.  Contract  made  under  duress  or  compulsion 1364 

1649.  Consideration — Exclusive  right  to  patented  invention 1364 


jjy  TABLE   OF    CONTENTS. 

SECTION  PAGE 

1650.  Words  applied  to  trade— "New  dress"  for  paper— Construction 

for  jury    1365 

1651.  Implied  contract  to  be  found  by  jury 1366 

1652.  Parol  evidence  to  vary  written  instrument 1366 

1653.  Latent   ambiguity   in  contract 1367 

1654.  Latent  ambiguity  in  oral  contract 1368 

1655.  Defense  of  illegality  of  contract 1369 

1656.  Meaning   of   contract   to   construct   and   finish   a  thing  of   the 

"finest  quality,"  for  the  jury  when 1369 

1657.  Action  for  breach  of  covenant  of  lease — For  failure  to  repair, 

maintain      and      surrender      premises — "Reasonable      use" — 
"Reasonable   wear" 1370 


CHAPTER  LXXXVIII. 
Contracts — Fob  Personal  Services. 

1658.  Action  on  contract  for  support  of  parent 1375 

1659.  Contract  to  perform  services  by  one  taken  into  family  when  a 

child  must  be  shown 1377 

1660.  Services  of  child  for  parent — Capacity  of  parent  to  make  con- 

tract— Child  as  member  of  family 1377 

1661.  Contract  of  service  made  by  correspondence 13S0 

1662.  Contracts,  express  or  implied — Proof  of 1380 

1663.  Contract  for  services  when  implied 1381 

1664.  When  the  relation  is  that  of  brother,  or  sister  or  parent  and 

child,  burden  upon  one  claiming  relation  of  contract  of 
service  to  prove  it,  and  to  rebut  presumption  that  it  was 
gratuitous     1381 

1665.  Service  rendered  by  grandchild  to  grandparent 1382 

1666.  Contract  for  services  between  employee  and  corporation 1385 

1667.  Action    for    services    by    wife    against    executor    of    deceased 

father-in-law    1386 


CHAPTER  LXXXIX. 
Damages — In  Personal  Injury. 

1668.  Measure  of  damages  in  persona1    injury — Medical  attendance. .  1389 

1669.  Same — Another  briefer  form    1390 

1670.  Damages  for  injury  to  minor  in  suit  by  next  friend 1390 

1671.  Duty   of   injured   person   to   care   for   himself — Employment   of 

physician    as    affecting    damages 1391 

1672.  Damages  recoverable  by  husband  for  injury  to  wife 1391 

1673.  Measure    of    damages    where    special    defense    on    account    of 

physical   condition   of   plaintiff 1392 

1673a.  Same    continued — Amount    of    compensation 1393 


TABLE   OF    CONTENTS.  XV 

CHAPTER  XC. 

Dangerous  Premises, 
section  page 

1674.  Injury  to  person  walking  along  sidewalk  and  privately  paved 
part  of  premises  connected  therewith  by  falling  into  hole 
diiectly   in   front  of  cellar   window 1394 


CHAPTER  XCI. 
Death   by   Wrongful  Act. 

1675.  Action  for  death  by  homicide — Self-defense 1400 

1676.  Same,   continued — What    is   excusable    homicide 1401 

1677.  Same,   continued — Right   of   self-defense — Justification 1401 

1678.  Action  for  death   by  wrongful   act — By  administrator  of  wife, 

killed    at    steam    railroad    crossing,    while    riding    with 
husband,  who  is  driving  team — Railroad  crossing 1402 

1679.  Measure  of  damages  for  death  of  husband — Wife  and  children 

as   beneficiaries 1410 

1680.  Another  form  as  to  measure  of  damages  for  death  of  husband. .  1410 

1681.  Damages  for  death  of  young  man,  to  mother,  sister  and  brother.  1411 

1682.  Intelligent    discretion    to    be    used    in    assessment    of    damages 

—Parents    1411 

1683.  Damages  resulting  to  husband  and  children  for  death  of  wife.  .1412 

1684.  Measure    of    damages    for    death    of    child — Mental    pain    and 

anguish   not   elements    1413 

1685.  Measure  of  damages — Earning  capacity 1413 


CHAPTER  XCII. 
Deeds. 

1686.  Execution  of,  under  duress — Threats 1415 

1687.  Capacity    to    make — Weak     mind — Old     age — Declarations     of 

grantor   admitted    for  what  purpose 1415 

1688.  Covenant     against     encumbrances — What     constitutes     breach 

— Damages   recoverable    14  HI 

1689.  Mental  capacity   of  grantor 1418 


CHAPTER  XCIII. 

Druggist. 

1690.     Ordinary  degree  of  skill   required 1420 


XVI  TABLE    OF    CONTENTS. 

CHAPTER  XCIV. 

Dynamite — Unlawful  Use  or  Possession  of. 
section  page 

1691.     Having  possession  of   dynamite   for   unlawful   use — Unlawfully 

depositing   same    1422 


CHAPTER  XCV. 
Ejectment — Adverse  Possession. 

1692.  What  constitutes  adverse   possession 1430 

1693.  It  need  not  be  held  under  color  of  title 1431 

1694.  Meaning   of    continuous    possession 1431 

1695.  Adverse   possession — Occupation   must   be   of   some   well-defined 

limits     1432 

1696.  Lines   between    owners 1432 

1697.  Abandonment — What    constitutes 1433 

1698.  Adverse  possession — Must  extend  to  what 1433 

1699.  Mistake  in  boundary  line — Nature  of  occupancy 1434 

1699a.  Declarations   as   to   ownership 1434 


CHAPTER  XCVI. 
Embezzlement. 

1700.  Venue  where  laid — Where  intention  to  commit  is  formed 1436 

1701.  By  treasurer  of  board  of  education 1437 

1702      Using   funds   intending   to  repay 1437 

1703.  By  public  officer  elected  or  appointed 1438 

1704.  By  agent  of  insurance  company 1443 

CHAPTER  XCVII. 
Eminent  Domain — Appropriation  of  Property. 

1705.  Right  of  way  for  railway  purposes — Constitutional  provisions.  1447 

1706.  Rules  for  assessing  compensation 1448 

1707.  Opinions  of  witnesses  as  to  value  of  property 1451 

1708.  Expert  testimony   1452 

1709.  Assessment      of      compensation      for      land — Rules     concerning 

— Market    value     1452 

1710.  Right  of   public   to   improve   and   use   a   public   highway — Con- 

struction of  railroad  in  highway  a  new  use 1455 

1711.  Appropriation    for    telegraph    line 1456 

1712.  Drainage    law — Object    of 1456 

1713.  What  use  will  justify  taking  private  property  for  drainage ...  1457 


TABLE  OF  CONTENTS.  XVii 

SECTION  pAGE 

1714.  Same — Benefits    to    private     individuals     for     cultivation     not 

sufficient     14,18 

1715.  Drainage  proceedings — Burden  as  to  questions  of  use 145!) 

1716.  Same,   continued — Number   of    petitioners 14.3!) 

1717.  Same,    continued — Determination    of    line    of    construction    of 

ditch — Considerations  to   be  observed 1460 

1718.  Same  continued — Compensation  for  lands  taken 14t;n 

17 10.     Same  continued — View  of  route  "oy  jury 1461 


CHAPTER  XCVIII. 
Estoppel. 

1720.  Defined    .1463 

1721.  Conduct  must  cause  prejudice  or  injury 1463 

1722.  Intent   to   mislead   not   essential 1464 

1723.  Statements  must  be  acted  upon 1464 


CHAPTER  XCIX. 
Evidence — Witnesses. 

1724.  General  instruction  as  to  the  evidence 1465 

1725.  Preponderance  and  weight  of  the  evidence 1467 

1726.  Evidence  and  testimony  distinguished— Weight  of  evidence  may 

be  shown  by  greater  or  less  number  of  witnesses,  as  the 
jury  may  view  it— Weight  may  be  shown  by  circum- 
stances or  inferences— Credibility  to  be  decided  before 
weight  to  be  determined 1469 

1727.  Declarations,      statements      or      admissions— How      considered 

— Civil  cases    147Q 

1728.  Declarations  against  interest  in  criminal  case 1470 

1729.  Inferences    drawn    from    conduct    of    parties    and    omission    to 

produce  evidence    1472 

1730.  Credibility    of    witnesses 1472 

1731.  Impeachment  of  witness— What  constitutes  reputation 1473 

1732.  Credibility  of  witnesses— Jury  to  consider  physical  conditions, 

possibilities  or  impossibilities   1476 

1733.  Jury    not    at    liberty    to    indulge    in    capricious    disbelief    of 

testimony    1477 

1734.  Circumstantial    evidence — Criminal   cases    1477 

1735.  Same — Another    form 147g 

1736.  Circumstantial    evidence — Continued 1478 

1737.  Negative    and    affirmative   evidence 147. 1 

1738.  Weigh*  given  medical  expert  testimony  as  to  personal  injury. .1480 
Medical  testimony  as  to  nature  of  human  blood 1480 


1739. 


XVlii  TABLE   OF    CONTENTS. 

SECTION  PAGE 

1740.  Uncorroborated  testimony  of  accomplice 1481 

1741.  Previous  good  character  in  criminal  case 1482 

1742.  Conduct    importing    guilt 1483 

1743.  Testimony  as  to  recognition  of  accused 1484 

1744.  Flight    of    accused    1484 

1745.  Consideration  of  improper  unanswered  questions  by  jury 1485 

1746.  Conflict  in   testimony 1485 

1747.  Reasonable    doubt    I486 

1748.  Drunkenness  no  excuse  for  crime — May  be  considered  for  what 

purpose    1487 


CHAPTER  C. 
False  Claims — Making  Out  and  Presenting  to  Public  Officers. 

1749.  False  claim  under  Code  sec.  13105 1489 

1750.  Legal  knowledge  of  a  fact  defined 1489 

1751.  Intent— Proof    of     1490 

1752.  False  claim,  bill  or  account — Presented  by  state  officer 1492 

CHAPTER  CI. 
False  Imprisonment. 

1753.  False   imprisonment  defined    1498 

1754.  Another   definition — Means   of   accomplishing   detention   or   res- 

traint other  than  by  formal   arrest 1498 

1755.  Different  form  of  definition — Detention  while  under   investiga- 

tion at  police  station 1499 

1756.  Trespass   to   person — Elements — Definition 1500 

1757.  Burden  on  plaintiff  to  prove  unlawful  restraint 1500 

1758.  Arrest   and    imprisonment — What   constitutes 1501 

1759.  Arrest  by   officer  without  warrant 1501 

1760.  Distinction   between  felonies  and  misdemeanors 1502 

1761.  Person  arrested  without  warrant  can  not  be  held  longer  than 

is  necessary  to  obtain  warrant 1502 

1762.  Arrest   of   witness    without    process 1502 

1763.  Liability  of  several  arresting  officers 1503 

1764.  Probable  cause    1503 

1765.  Probable  cause — Right  of  officers  of  police  department  to  make 

investigation     1504 

1766.  Responsibility    of    chief    of    police    if    person    brought    in    for 

investigation,  under  suspicion  for  a  felony,  but  without 
formal  arrest,  where  there  is  a  formal  detention  by 
mistake     1505 

1767.  Damages     I506 


TABLE   OF    CONTENTS.  XIX 

SECTION  PAGE 

1768.  False   arrest  and   detention  of  guest  at   hotel   supposed  to  be 

using   room   for   immoral    purposes 1507 

1769.  False  imprisonment  where  fact  of  imprisonment  and  discharge 

conceded    1515 


CHAPTER.     CII. 
Fraud — False  Representations,  etc. 

1770.  Fraud  not  presumed — Burden  of  proving 1519 

1771.  Remedies  for  fraud — Rescission  and  restoration 1520 

1772.  Fraud    defined    1520 

1773.  Proof    of    fraud 1521 

1774.  Contract  to  be  rescinded  and  tender  made 1522 

1775.  Election  to  rescind  within  a  reasonable  time  for  the  jury....  1522 

1776.  Representation  must  be  material 1523 

1777.  Misrepresentation   by  concealment 1523 

1778.  False  representations  without  knowledge  of  truth  or  falsity. ..  1524 

1779.  Ingredients  of  actionable  fraud — Intent  to  deceive — Puffing  and 

commendation — Complainant  must  be  misled 1524 

1780.  Misrepresentation  to  existing  or  past  fact 1526 

1781.  Fraudulent  promise  coupled  with  present  intent  not  to  fulfil..  1526 

1782.  Fraudulent  promise  not  to  engage  in  business 1526 

1783.  Representation   as   to   value 1527 

1784.  Jury  to  find  what  representations  were  made — Must  be  relied 

upon     1527 

1785.  Fraud   on   old    person — What   constitutes — Proof 1529 

1786.  Fraudulent  purchase   of  goods — Essential  elements  of  fraud — 

Must  have  knowledge  of  falsity — Stating  what  is  believed 
to  be  true — Statement  without  knowledge  of  truth — Must 
intend  to  deceive — Must  be  material — Party  must  be 
misled    and    damaged 1530 

1787.  Fraudulent   purchase  of  goods,    continued — Vendor  may   abide 

by   or   rescind  contract 1531 

1788.  Liability    of    corporation     for     fraudulent    representations     of 

agents    153 1 

1789.  Fraudulent    purchase    of    goods — Principal    can    not    repudiate 

fraud  of  agent  and  accept  benefit  of  contract 1532 

1790.  Fraudulent  purchase  of  goods — Power  of  agent  to  make  state- 

ments as  to  credit  and  financial  condition  of  principal  in 
purchase   of   goods 1532 

1791.  Purchase  of  goods  with  intent  not  to  pay  for  them — Insolvency 

of  purchaser  concealed 1533 

1791a.  Mercantile   agency — Liability   for   false   reports  as  to   financial 

standing    1535 

1792.  Transfer  of  property  by  one  in  debt  without  consideration 1536 


XX  TABLE   OF    CONTENTS. 

SECTION  PAGE 

1793.  False    representation    in    sale    of    horse    as    to    being    vicious 

— Purchaser    injured    while    driving — Effect   of    his    own 
knowledge  and  care 1536 

1794.  Same,     continued — Vendor's    knowledge    of     defects — Duty    to 

give  notice    1538 

1795.  Same,  continued — Measure  of  damages 1539 

1796.  Representations    assumed   to    be   within   one's   knowledge,    but 

truth  not  known — Recklessly  made 1540 

1797.  Fraud  in  sale  of  land — Preventing  examination  of  land 1540 

1798.  Fraudulent  representations  as  to  location  of  city  lot 1541 

1799.  Whether  son  fraudulently  persuades  parent  to  make  beneficial 

dispositions  of  property  to  him 1541 

1800.  Representations    as   to   value   of    stock — Such    statement   when 

actionable — Mere   opinions 1542 

1801.  Fraud  in  obtaining  insurance  policy  alleged  by  defendant 1543 

1802.  Measure     of     damages     when     plaintiff     exchanged     land     for 

merchandise — Market  value  of  land  not  considered 1548 

1803.  False    representation    concerning    merits,    working    and    adap- 

tability of  patented  machine — Claimed  by  cross-petition . .  1549 

1804.  Fraud  in  sale  of  stock  in  proposed  company 1555 

1805.  Fraudulent  declaration  of  dividends  by  directors  of  corporation 

— Action    against    directors    for    loss    by    purchaser    of 
stock   1563 


CHAPTER  CIII. 
Gambling  Contracts. 

1806.  Contracts  for  sale  of  grain  to  be  delivered  at  future  day 1572 

1807.  Fact   that   one   party    acts   as   commission    merchant   does   not 

change  relation    1574 

1808.  Action  for  money  lost  by  a  person  dependent  for  support  upon 

the  person  losing  money 1575 

CHAPTER  CIV. 
Gift. 

1809.  Gift    inter    vivos 1578 

1810.  What  constitutes  valid  gift 1578 

1811.  Retaining  dominion   over  gift 1579 

1812.  Gift  of  mortgage  or  money  represented  by  mortgage 1579 

CHAPTER  CV. 
Grand  Jury. 

1813.  A  concise  charge  to  the  grand  jury 1582 

1814.  Introductory  I588 


TABLE   OF    CONTENTS. 


XXI 


SECTION  pAGE 

1815.  Origin  of  institution  of  grand  jury 1588 

1816.  Grand    jury    to    institute    criminal    proceedings   as   well    as    to 

guard  against  unjust  accusations 1589 

1817.  Oath,  and  responsibility  imposed  thereby 1589 

1818.  Special  charge  as  to  bucket-shops — Gambling  in  margins 1590 

1819.  Character  of  evidence  to  warrant  indictment 1592 

1820.  Legal   evidence  only   to  be  considered 1592 

1821.  Looking  at  guilt  and  innocence 1593 

1822.  Scope   of   inquiry 1593 

1823.  Secrecy    must  be   observed — Another   form 1595 

CHAPTER    CVI. 
Harboring  Females. 

1824.  A  house  of  ill  fame  defined — Harboring  a  female  of  good  repute 

in — "Harboring"  defined  1597 

1825.  "Good  repute  for  chastity"  defined 1597 

CHAPTER    CVII. 
Homicide; — Murder  in  the  First  and  Second  Degree  and  Manslaughter, 

1826.  Preliminary  statement  concerning  duty  and  obligation  of  jurors.  1600 

1827.  The  indictment 1602 

1828.  Plea  of  defendant — Not  guilty  and  of  insanity 1602 

1829.  Burden  of  proof  on  plea  of  not  guilty 1602 

1830.  Burden  of  proof  of  insanity 1602 

1831.  Degree  of  evidence  required  to  prove  insanity — Preponderance.  .  .  1603 
1831a.  Insanity   1603 

1832.  Presumption  of   innocence 1605 

1833.  Reasonable  doubt  defined  and  explained 1605 

1834.  Circumstantial  evidence 1606 

1835.  Jurors  must  reason  together Kin; 

1836.  Credibility  of  witnesses 1608 

1837.  Reputation  of  defendant  for  peace  and  quiet 1609 

1838.  Essential  elements  to  be  proven 1609 

1839.  Charge  of  first  degree  murder — Also  includes  lesser  degrees 1610 

1840.  Law    as   to   homicide — Murder   in   first   and   second   degree,   and 

manslaughter  defined    1610 

1841.  Intent     1611 

1842.  Malice   1612 

1843.  Deliberation  and  premeditation 1614 

1844.  Murder   in   second    degree — Distinguished    from    murder    in    first 

degree    1 61 5 

1845.  Manslaughter  1616 

1846.  Same — Provocation  sufficient  to  reduce  to  manslaughter 1616 


XX11  TABLE    OF    CONTENTS. 

SECTION  PAGE 

1847.  Adequate  or  reasonable  provocation — Another  form 1618 

1848.  Provocation — Reasonable  suspicion  of  infidelity  of  wife  not  suf- 

ficient   1619 

1849.  Assault  and  battery  and  assault  defined 1619 

1850.  What  is  essential  to  conviction  in  the  first  degree 1620 

1851.  An  act  feloniously  done  explained 1620 

1852.  Inflicting  mortal  wound  with  deadly  weapon — Inference  from..  1620 

1853.  Person  intends  natural  consequences  of  his  act 1621 

1854.  If  not  found  guilty  of  murder  in  the  first  degree,  may  be  of 

second    1621 

1855.  May  find  guilty  of  manslaughter,  when 1622 

1856.  May  find  guilty  of  assault  and  battery 1622 

2857.     Defendant  as  an  aider  and  abettor 1623 

1858.  Defendant,  though  guilty  of  no  overt  act,  entered  into  conspiracy 

— Aider  and  abettor 1624 

1859.  Intent  to  kill  in  murder  in  second  degree — Use  of  deadly  weapon.  1626 

1860.  Malice — The  character  of  weapon  used  to  be  considered 1627 

1861.  Manslaughter — No  malice  in — Provocation  to  reduce 1627 

1862.  Provocation — All  surrounding  circumstances  to  be  considered — 

Cooling    time 1628 

1863.  Malice  in  murder — Another  form 1628 

1864.  Malice— Another  form 1630 

1865.  "Deliberation"'  and  "premeditation"  in  murder — Another  form..  1631 

1866.  "Purposely,"  "unlawful"  and  "feloniously" 1632 

1867.  Proof  of  purpose  to  kill,  malice,  deliberation  and  premeditation.  .1633 

1868.  Person  presumes  reasonable  consequences  of  his  acts 1634 

1869.  Manslaughter — What  is — Provocation 1635 

1870.  Manslaughter- — Person  present  doing  no  overt  act  not  aider.  ...  1636 

1871.  Self-defense — Whether  defendant  believed  he  was   about  to  be 

robbed — Burden  of  proof  on  defendant 1636 

1872.  Self-defense  in  self -protection  against  riotous  strikers  attempt- 

ing to  stop  defendant  from  working 1639 

1873.  Self-defense,  in  ejecting  one  from  saloon 1642 

1874.  Self-defense — What  constitutes — Another  form 1645 

1875.  When  a  person  may  take  the  life  of  an  assailant  in  self-defense — 

A  different  form — Giddings  case 1647 

1876.  Right  to   repel   assault 1650 

1877.  Son  may  defend  parent 1650 

1878.  Justifiable  homicide 1651 

1879.  Common  defense  from  attack 1652 

1880.  Evidence  of  previous  character  and  reputation  in  homicide 1652 

CHAPTER    CVTII. 
Insanity. 

1881.  Insanity — A  comprehensive  presentation 1654 

1882.  Insanity    defined 1658 


TABLE    OF    CONTENTS.  XX111 

SECTION  PAGE 

1883.  Insanity  as  a  defense 1660 

1884.  Burden  of  proving  insanity 1662 


CHATTER    CIX. 
Insurance — Fire,   Accident,  Life. 

1885.  Burden  on  plaintiff  to  prove  loss — Proofs  of  loss — Or  waiver  of 

provisions  by   defendant 1664 

1886.  Waiver  of  proofs  of  loss — Burden  of  proving  authority  of  agent 

on  plaintiff — Instructions  as  to  waiver  of  conditions — 
By    agent 1665 

1887.  Conditions  as  to  time  of  proof  of  loss — And  proof — When  right 

to  sue  accrues — What  is  a  sufficient  notice — Notice  and 
proof  of  loss — Waiver  of — How  made 1667 

1888.  Waiver  of  proofs  may  be  inferred  from  acts  of  company — Mere 

silence,  nor  sending  agents  to  investigate,  nor  attempt 
to  compromise  will  not  amount  to  waiver — What  other 
acts  in  connection  therewith  will 1668 

1889.  Proof  of   loss — If  policy  of   insurance  destroyed   it   is  duty   of 

company  to  furnish  copy  or  information — Failure  on  its 
part  may  estop  company  from  claiming  proofs  not  in 
time   1670 

1890.  Burden  of  proof  in  action  for  loss  by  fire — Proofs  of  loss,  etc..  1671 

1891.  Insurance  of  partnership  property — Was  partnership  dissolved 

at  time  insurance  issued — Representation  as  to  ownership 

of    property 1672 

1892.  Vacancy  of  property — Breach  of  condition  as  to 1073 

1893.  When  is  a  building  vacant  or  unoccupied 1675 

1894.  Vacancy — Waiver  of  forfeiture  by  reason  of  vacancy  of  prem- 

ises— Burden  of  proof 1676 

1895.  Total  or  partial   loss 1677 

1896.  Compromise  of  loss  obtained  under  duress 1678 

1897.  Evidence   as   to   value   of   property   as   reflecting    on   charge   of 

destroying  property 167S 

1898.  Cancellation   of   policy 1679 

1890.     Rescission — Necessary  party  to  suit  for 1680 

1900.  Defense  of  false  representations  as  to  value  of  property — Burden 

of    proof 1680 

1901.  Defense    when    fraudulent   concealments   or    misrepresentations 

were   made 1682 

1902.  False  representations  as  to  other  insurance 1683 

1903.  Same,  continued — Return  of  premium 1685 

1904.  Fraudulent  proofs  of  loss 1685 

1905.  Fire  insurance — Ownership  of  property,  insurable  interest 1685 


XXIV  TABLE   OP    CONTENTS. 

SECTION  PAGE 

1906.  Fire  insurance — Defense  as  to  provision  requiring  production  of 

books  for  examination 1686 

1907.  Defense — That    large    quantities    of    oil    and    petroleum    were 

stored,  and  drawn  at  night  in  violation  of  policy 1687 

1908.  Defense — That  fire  was  caused  by  willful  act  of  procurement.  .  .  1688 

1909.  Insurance    on    steamboat — Negligence    of    owner's    agent — Sea- 

worthiness of  boat 1688 

1910.  Accident  insurance — Proof  of  claim 1689 

1911.  Accident    insurance — What    necessary    to    recovery    for    death 


upon 


1690 


1912.  Consideration — Adequacy  or  sufficiency  not  inquired  into 1691 

1913.  Insurance — Application   for — Statements,   how   treated 1691 

1914.  Insurance — Life — Misrepresentations  made  by   insured 1692 

1915.  Same,    continued — What    constitutes    waiver    of   misrepresenta- 

tions      I693 

1916.  Concealment  of  material  fact  concerning  insurance,  or  subject 

thereof    1693 

CHAPTER    CX. 
Intoxicating  Liquor. 

1917.  Action  by  wife  against  person  selling  or  furnishing  liquor   to 

intoxicated  person — Liability  of  person  furnishing 1695 

1918.  Evidence  of  sales  made  after  suit 1697 

1919.  Who  is  keeper  of  place 1697 

1920.  Defendant    must     know     of     habit     of     intoxication — Notice — 

Damages     1697 

1921.  Selling  and  furnishing  intoxicating  liquors  to  habitual  drunk- 

ards— What  constitutes  a  sale 1698 

1922.  Same,    continued — Intoxication    defined 1699 

1923.  Same,   continued — Habitual  drunkard   defined 1700 

1924.  Sale  of   intoxicating   liquors   within   two   miles  of   agricultural 

fair     1701 

1925.  Same,  continued — What  constitutes  a  sale 1701 

1926.  What  constitutes  sale  within  two  miles  of  agricultural  fair. .  . .  1702 

1927.  What    is    intoxicating    liquor 1703 

1928.  What  is  an  agricultural  fair 1703 

1929.  Sales  by   agent  or  barkeeper 1703 

CHAPTER    CXI. 
Landlord  and  Tenant. 

1930.  Duty  of  landlord  to  repair  walks — Remaining  under  his  control. 

and  part  of  common  walk 1705 

1931.  Same,  continued — Defects  in  walk  known  to  plaintiff 1706 

1932.  Whether  premises  rendered  unfit  for  occupancy  on  account  of 

fire — So  that  rent  may  not  be  collected 1707 


ATTGftN£Y.AT.Uw 

ill923  S^er 

TOLEDO,  OHIO. 
TABLE   OF    CONTENTS.  XXV 


CHAPTER    CXII. 
Labcent. 


SECTION 


PAGE 


1933.  Larceny   defined 1709 

1934.  Grand  larceny — Essential  or  material  allegations  to  be  proved.  .1710 

1935.  What  constitutes  a  taking  and  carrying  away 1710 

1936.  Return    of    property    upon    being    discovered    does    not    change 

offense     1711 

1937.  What  constitutes  larceny  of  property  where  owner  voluntarily 

parts  with  its  possession 1711 

1938.  Crand  larceny  committed  by  destruction  of  property — Intent — 

How    proved 1712 

1939.  Larceny — Of  lost  money — What  essential  to  constitute  larcwiy 

by  finder 1713 

1940.  Value  of  property  must  be  proved 17 14 

1941.  Larceny  of  money  found  by  undertaker  on  dead  body  drowned 

in  flood 1714 

1942.  Larceny — Short  charge  in 1718 


CHAPTER    CXIII. 
Libel  and  Slandeb. 

1943.  Libel  per  se — Defined 1721 

1944.  Libel   defined — False  and  malicious  publication   injuring   repu- 

tation      172 1 

1945.  Libel — Another    definition 1722 

1946.  Constitutional  limitation  of  liberty  of  speech — Scope  and  extent 

thereof 1723 

1947.  Constitutional  right  of  liberty  of  speech  and  of  press — Another 

form — May  not  trifle  with  right  of  reputation 1724 

1948.  Reasonable  criticism  may  be  made  by  newspaper 1725 

1949.  Duty  of  jury  to  decide  whether   it  has  libelous  tendency  and 

effect — When    1 726 

1950.  Publication  construed  by  court  as  libelous  per  se 1727 

1951.  Jury  to  find  whether  article  published  of  plaintiff 1727 

1952.  What  is  a  publication,  and  who  are  liable  as  publishers 1727 

1953.  Truth  as  a  defense — To  be  as  broad  as  charge 1729 

1954.  Innuendo — Meaning  ascribed  thereby,  for  the  jury 1729 

1955.  Proof  of  financial  condition  of  defendants 1730 

1956.  Good    faith    of    defendants    in    making    publication — To    rebut 

malice    1731 

1957.  Malice  in  law — Malice  in  fact 1732 

1958.  Damages — Compensatory  and  punitive 1733 

1959.  Publishing   information    received    from   others — Liability   there- 

for     ' 1735 


XXvi  TABLE   OF    CONTENTS. 

SECTION  PAGE 

1960.  Publication   made   to   whom 1735 

1961.  Slander — Defamatory  words  must  be  spoken  to  some  person..  .1736 

1962.  Words  when  to  impute  a  crime 1736 

1963.  Libel — Charge    of    altering    certificate — Meaning    of    words   for 

jury   1737 

1964.  Privileged   communications — Whether    extended    to   member    of 

examining  school  board 1737 

1965.  Libel — Reports  of  judicial  proceedings — Privilege 1740 

1966.  Libel — Publication    from    report    of    examining    committee    of 

county    treasurer 1741 

1967.  Comments  upon  report  made  with  good  motives,  etc 1742 

1968.  Statements  made  to  officer  in  discovering  crime,  privileged. ..  1742 

1969.  Construction    of    words     and    understanding    of    meaning    by 

hearers    1/43 

1970.  Effect  of  adding  excusable  words 1744 

1971.  Libel — Meaning  of  words  for  jury 1744 

1972.  Libel — Meaning  of  words 1745 

1973.  Kinds  of  malice   in  slander 1745 

1974.  Damages — Kinds    of !740 

1975.  Damages  in  libel  per  se — When  testimony  rebuts  legal  malice.  .1747 

1976.  Libel — Counsel  fees  allowed  in  compensatory  damages 1749 

1977.  Extent  to  which  libel  is  published  as  affecting  damages 1749 

1978.  What  constitutes  libel  to  one  in  his  business 1750 

1979.  Measure  of  damages  to  one  in  his  business 1751 

1980.  Same,  continued— Character  and  extent  of  business,  and  business 

reputation  to  be  considered 1752 

1981.  Same,   continued — Effect   of   absence   of   malice — Mitigating   cir- 

cumstances—Effect  of    acting   upon    fairly    reliable   infor- 
mation   1753 

1982.  Measure  of  damages— Effect  of  agreement  to  accept  retraction 

of    publication 1754 

1983.  Slander  of  candidate  for  office 1755 

1984.  Libel  against  one  in  his  business  as  a  bricklayer  and  contractor 

— By  a  bricklayer's  union 1756 

1985.  Same,  continued — Measure  of  damages 1758 

1986.  Damages  to  be  awarded  in  general 1760 


CHAPTER    CXIV. 
Malicious  Prosecution. 

1987.  Essential  facts  to  be  found— Burden  of  proof 1763 

1988.  Probable    cause    defined 1764 

1989.  Malice  may  be  inferred  from  want  of  probable  cause 1765 

1990.  Advice  of  counsel • * ' 66 


TABLE    OF    CONTENTS.  XXVH 

SECTION  PACE 

1991.  Discharge   by   examining   magistrate — Prima  facie   evidence  of 

want    of   probable   cause 1766 

1992.  Prosecution  must  have   terminated 1767 

lyu3.     Measure  of  damages — Compensatory — Counsel  fees — Exemplary 

damages    1767 

1994.  Malicious   injunction — Probable  cause   for  commencing 1768 

1995.  Malicious    prosecution — Complete    charge 1770 


CHAPTER    CXV. 
Malpractice. 

1996.  Care   required  of   a   physician 1775 

1997.  Duty  of  physician  to  use  reasonable  and  ordinary  care — Another 

form     1776 

1998.  Contributory   negligence   of    patient 1776 

1999.  Liability  of  surgeon  for  performing  operation  without  consent.  .  1777 

2000.  Liability  of  physician  for  injuries  caused  by  use  of  X-Raya. .  . .  1780 

CHAPTER    CXVI. 
Manslaughter. 

2001.  Manslaughter — By  negligent  driving  of  automobile — A  complete 

form  of   instructions 1781 

2002.  Charge  of  manslaughter   by  one  attempting  to  arrest  another 

for    felony 1789 

2003.  Negligent  driving  of  automobile   as  forbidden  by   statute  con- 

stitutes  manslaughter 1793 

2004.  Contributory  negligence  of  deceased  no  defense  in  manslaughter 

caused  by  neglect  of  driver  of  automobile 1794 

CHAPTER    CXVII. 
Marriage. 

2005.  What    constitutes    marriage 1795 

2006.  Common    law   marriage 1796 

2007.  Legitimacy  of  children 1799 

2008.  Marriage   in   another  state  forbidden  by  laws  of  such  state — 

Followed  by  cohabitation  in  Ohio 1800 

CHAPTER    CXVI11. 
Master  and  Servant — Negligence  or  Master. 

2009.  C.eneral  duty  of  master  to  servant 1803 

2010.  Master  must  exercise  ordinary  care   in  selecting  servants 1803 


XXViii  TABLE   OP    CONTENTS. 

SECTION  PAGE 

2011.  Duty   of   rairoad   company    to   use   reasonable   care   to   furnish 

adequate  number  of  competent  employes  to  manage  engine 
and  trains  of  cars 1804 

2012.  Whether   failure   to   furnish   adequate    number   of  employes    is 

proximate  cause  of  injury 1805 

2013.  If  servant  knew  there  was  an  inadequate  force  of  employes,  and 

continues  in  service,  he  assumes  risks 1805 

2014.  Duties    of    master — Assumption    of    risks — General    scope    and 

extent   of   doctrine 1806 

2015.  Servant  assumes  risk  of  negligence  of  fellow  servant 1808 

2016.  If  master  uses  ordinary  care  in  selecting  servant,  who  subse- 

quently becomes  incompetent,  knowledge  of  master  essen- 
tial      1808 

2017.  Servant  does  not  assume  risk  of  negligence  of  a  servant  incom- 

petent when  entering  employment 1809 

2018.  Servant  does  not  assume  risk  of  negligence  of  one  occupying 

relation   of   principal 1809 

2019.  Insufficient   force — Risk   from   assumed,   when 1809 

2020.  Fellow-servants — Who  are — When  one  placed  in  control  of  an- 

other      1810 

2021.  Rules   for   determining   who   is   co-employe   or   vice-principal — 

Brakeman   and   foreman 1811 

2022.  Respondeat  superior — Disregard  of  orders  of  superior  servant — 

Effect  of 1812 

2023.  Fellow  servants — Conductor   and   brakeman 1812 

2024.  Relation  between  engineer  and  train  dispatcher 1813 

2025.  Acts  done  by  servant  at  request  of  a  fellow-servant — Liability 

of   master 1814 

2026.  Obvious  danger — Acts  done  by  order  of  superior  servant 1814 

2027.  Warning  of  danger  by  fellow-servant 1815 

2028.  Knowledge  of  danger  unknown  to  master — When  danger  known 

to  servant 1815 

2029.  Knowledge  of  dangerous  methods  amounts  to  acquiescence  and 

assumption  of  risks 1816 

2030.  Knowledge  of  work  and  assumption  of  risks 1816 

2031.  Duty  of  railroad  conductor 1816 

2032.  Railroad  company  deemed  to  have  knowledge  of  defect — Burden 

of  proof  on  company  to  rebut 1817 

2033.  Duty  of  railroad  company   as  to   inspection — Defect  in  brake- 

staff 1818 

2034.  Burden  of  proof  of  contributory  negligence  on  defendant  unless 

plaintiff's  own  testimony  raises  inference 1821 

2035.  Contributory  negligence  considered  with  reference  to  directions 

of  master 1822 

2036.  Contributory  negligence   of  servant  of  railway  when  slight  as 

compared   with   negligence   of  master — Present   statutory 
rule    1822 


«^E   OF    CONTENTS.  XXIX. 

PAGE 

SECTION 

2037.  Servant  injured  while  working  on  derrick  car— Negligence  by 
running  engine  into  same— W ithout  disconnecting  ma- 
chinery on  such  car 

•Z038      Death  of  engineer  from  derailment  of  train 1829 

2039.  Failure  to  warn  and  instruct   servant  and  to  sufficiently  light 

machinery— Injury  to  servant  in  operating  power  shears.  1832 

2040.  Injury  caused  by  defective  guy  supporting  derrick 1835 

2041.  Railroad  company  may   make   rules  governing  conduct  of  em- 

ployee—Duty of  employee  with  reference  to 1840 

2042      Liability  of   railroad   company    for   violation    of    rules   by   em- 

,  1841 

plovee    

1841 

2043.  Measure    of    damages 

2044.  Injurv  to  child  of  employee • 

2045      Joint'  occupancy  of   sidetrack   by   two  companies— Relation   of 

servants  of  one  company  to  the  other— Injury  to  servant 

1842 
by  failure  to  inspect  track 

2046.     Relation  of  servant  and  agency  may  be  inferred  from  facts  and^  ^ 
circumstances 


CHAPTER    CXIX. 

Mob— Liability  of  County  for  Injury  by. 

2047.     Liability  of  county  for  injury  from  mob  under  statute 1845 

CHAPTER    CXX. 

Municipal    Corporations— Streets— Sidewalks— Change    of    Grades- 
Sewers. 

2048.  Dedication  of  property  for  public  street— Requisites  of 1851 

2049.  Interest  of  abutting  owner  in  street— Ingress  and  egress 18o- 

2050.  Establishment  of  street  by  general  use,  or  prescription 1853 

2051.  Streets  may  be  improved  *o  meet  public  needs— Withim  reason- 

able discretion  of  municipality 18° 

2052.  Must    keep    sidewalks    and    cross-walks    open    and    reasonably 

safe— Municipality  not  an  insurer 1854 

2053.  Pedestrians  to  use  ordinary  care  in  passing  along  streets— May 

assume  city  discharged  its  duty ' 855 

2054.  Defective  street  becomes  a  nuisance,  when 185(» 

2055.  When  city  liable  for  defects  in  streets— Constructive  notice.  ...  Is..- 

2056.  Sidewalk' in  defective  condition  for  such  length  of  time  that  city 

presumed  to  know  it 

2057.  Not  liable   for  mere  slipperiness  from  snow  or  ice— Otherwise 

if   dancer   from    want  of   repair   was   enhanced   by   snow 

,    .  1858 

and    ice 


XXX  TABLE   OF    COXS 

SECTION  PAGE 

2058.  Though  city  not  liahle  for  mere  slipperiness  from  ice  or  snow, 
otherwise  if  snow  or  ice  allowed  to  accumulate  so  as  to 
become  serious  and  noticeable  obstruction — Length  of 
time    allowed 1860 

20.50.     Liability  of  municipality  for   injury  resulting  to  traveler  upon 

stone  in  street — Duty  of  traveler 1861 

2060.  City  to  keep  sidewalks  in  reasonably  safe  condition  for  travel..  1862 

2061.  Injured  party  to  show  actual  or  constructive  notice  to  city.  .  .  .  1863 

2062.  Streets  and  sidewalks  to  be  kept   in  reasonable  repair  and  free 

from  nuisance — Must  show  actual  or  constructive  notice.  1864 
2003.     Latent  defect — Actual  notice  to  be  shown 1865 

2064.  Sewer  system — Reasonable  care  required  in  construction,  main- 

tenance   and    supervision — Providing    safeguards    to    pre- 
vent backwater  from  sewer 1866 

2065.  injury  from  change  of  grade — Purpose  of  a  view  of  premises.  .  .  1867 

2066.  Change  of  grade  within  authority,  and  without  negligence. ...  1867 

2067.  Change  of  grade — Improvements  made  with  reference  to  estab- 

lished grade — Liability  for  injury  from  change  of  grade.  1868 

2068.  Change   of   grade — Statute    as   to — Requirements    of   owner   as 

to    claims 1868 

2060.  Change  of  grade — Requirements  as  to  files  and  surveys — Re- 
liance upon  by  abutting  owner — Failure  to  file  claim — 
Skill  required  of  owner — Reliance  upon  information  fur- 
nished   by    engineer 1869 

2070.  Change   of   grade — Plans   and    profiles — Owner   may    rely   upon 

information  and  explanation  by  engineer 1871 

2071.  Change  of  grade — Adopting  county  road  as  street 1871 

2071a.  Change  of  grade — Improvement  made  before  grade  established 

is  at  one's  own  peril 1S72 

2072.  Change  of  grade — Rule  as  to  unreasonable  grade 1873 

2073.  Change  of  grade — Whether  or  not  premises  abut  upon  improve- 

ments as  affecting  claim  for  damages 1874 

2074.  Reasonableness  of  grade  of  street — What  should  be  considered 

in  determining 1875 

2075.  Change  of  grade — Recovery  of  interest  on  damage 1875 

2076.  Change   of  grade — Retaining  wall — Whether   necessary   to  pro- 

tect buildings 1876 

2077.  Streets — Change  of  grade — Damages — A  different    form 1876 

2078.  Change  of  grade  after  improvement — How  proved 1877 

2070.     Whether     improvement     made     in     conformity     to    established 

grade   1878 

2080.  Chang"   of  grade — Damages   recoverable — Injury    to   building — 

Shrubbery — Access   to  premises — Value  before  and  after 
change   1870 

2081.  Damages — Market  value — Opinion  evidence 1880 

2082      Damages — Enhancement  of  value 1881 


TABLE   OF    CONTENTS.  XT*j 

SECTION  PA(;E 

2083.  Change   of  grade — Damages — Benefits 1882 

2084.  Damages  to  property  owner  by  construction  of  street 1884 

2085.  Excavation  in  street — Negligence  in  making — Signals  or  lights — 

Right  of  travel  subject  to  temporary  obstructions  or  ex- 
cavations   1885 

2086.  Obstruction  of  sidewalk  when  building 1888 


CHAPTER    CXXI. 
Negligence — Genebal  Rules. 

2087.  General  form  of  opening  statement 1892 

2088.  Explanatory  instruction  to  jury  concerning  its  duty 1893 

2089.  Another  form  of  opening 1894 

2090.  Negligence — Ordinary  care — Defined 1895 

2091.  Negligence — Another    definition 1896 

2092.  Negligence — A    concise    definition 1896 

2093.  Negligence   exists   only   when    there    is   a   duty — Essential   ele- 

ments to  constitute 1897 

2094.  Imports  want  of  attention 1897 

2095.  Negligence,  active  or  passive 1898 

2096.  Ordinary    care — Negligence — Relationship — Duty 1898 

2097.  No  element  of  purpose  of  moral  turpitude 1898 

2098.  Ordinary  care  under  circumstances  of  peculiar  peril — Intent  not 

an  element  of  negligence 1899 

2099.  When   negligence    is  wanton 1900 

2100.  General  duty  to  everybody  becomes  a  particular  duty  to  single 

person,  when — Duty  of  owner  of  premises  to  keep  them 
reasonably  safe 1900 

2101.  Cause  not  negligent  act  alone,  but  injury  proximately  resulting 

from  breach  of  duty 1901 

2102.  Burden   of  proving   negligence 1001 

2103.  Ordinary  care 1901 

2104.  Ordinary  care  under  circumstances  of  peculiar  peril 1902 

2105.  No  presumption  of  negligence  against  either  party 1903 

2106.  Proximate  cause  defined   and  explained 1903 

2107.  Proximate  cause — Another  definition 1904 

2108.  Contributory  negligence 1905 

2109.  No  recovery  when  there  is  contributory  negligence 1905 

2110.  Contributory  negligence — Must  be  proximate  cause  of  injury..  1906 

2111.  When    plaintiff   must   sliow   himself   without   fault   or   to    rebut 

inference  <>f   negligence 1907 

2112.  Burden  of  proving  contributory  negligence 1907 

2113.  Contributory  negligence  as  applicable  t<>  children 1908 

2114.  Consent  of  children — Effect 1909 

2115.  Contributory  negligence — Intoxication  as  affecting 1910 


XXxii  TABLE   OF    CONTENTS. 

SECTION  PAGE 

2116.  Contributory   negligence — Husband   performing  duties  as   such 

not  agent  of  wife 1911 

2117.  Imputed  negligence 1912 

2118.  Negligence — Of  parent  not  imputed  to  child 1912 

2119.  Duty  of  employer  to  infant  employee 1912 

2120.  The  last  clear  chance  doctrine 1913 

2121.  Concurrent    negligence 1914 

2122.  When   negligence  of   plaintiff  not   continuing,   but  that  of  de- 

fendant is  continuing  and  proximate,  while  that  of  plain- 
tiff is  remote 1915 

2123.  Injury  to  passenger  by  derailment  res  ipsa  loquitur — Establish- 

ing prima  facie  case 1915 

2124.  Burden  of  proof  when  injury  caused  by  res  ipsa  loquitur 1916 

2125.  Sudden  peril — Conduct  of  person  placed  in 1916 

2126.  Rescuing  one  from  danger — Injury  while  attempting  to  rescue 

— Contributory  negligence 1917 

2127.  Law    designs    to    hold    the    one   whose    conduct   causes    injury, 

whether  plaintiff  or  defendant.  It  is  the  nature  of  man 
to  protect  himself,  and  this  is  the  measure  of  duty  in 
law 1918 


CHAPTER    CXXII. 
Negligence: — Miscellaneous  Cases. 

2128.  Injury  from  defective  gun 1920 

2129.  Charge  that  gun  was  negligently  carried,  thus  causing  death..  1921 

2130.  Liability  of  owner  of  racetrack  for  injury  to  driver  from  defect 

in    track 1921 

2131.  Same — Negligence  of  defendant  must  proximately  cause  injury.  1922 

2132.  Same — Diligence  required  of  plaintiff 1923 

2133.  Liability  of  county  for  injury  by  a  mob 1924 

2134.  Injury  from   natural  gas   explosion — Independent  contractor — 

Rule  of  respondeat  superior  not  applicable 1926 

2135.  Same — Injury  from  failure  to  close  and  calk  pipes 1927 

2136.  Injury  from  explosion  of  boiler 1928 

2137.  Collision  between  street  car  and  steam  railway  engine  at  cross- 

ing— Action  for  damage  to  street  car 1929 

2138.  Injury  to  passenger  from  collision  between  cars  on  scenic  rail- 

way in  public  park 1931 

2139.  Traction  engine  in  highway  lawful — No  liability  from  ordinary 

use — Not  bound  to  be  on  lookout  for  frightened  horses 
in  field — Owner  or  operator  liable  for  wanton  or  unneces- 
sary   sounding    whistle 1933 


TABLE   OF    CONTENTS.  .        XXXlli 

CHAPTER    CXXIII. 

Nuisance, 
section  page 

2140.  Nuisance — Comprehensive  view  and  definition  of  wrong 1934 

2141.  Definition — Another   form 1936 

2142.  Modern  statutory  definition 1937 

2143.  There  must  be  actual  injury — More  than  mere  tendency 1937 

2144.  Degree  of  annoyance  to  constitute 1938 

2145.  Liability  of  property  owner  for  injury  to  traveler  from  open- 

ing or  excavation  in  street  adjoining 1939 

2146.  Duty  of  lot  owners  where  excavation   is  made  in   sidewalk   in 

front  of  premises  by  contractor 1941 

2147.  Responsibility  of  lot  owner  for  excavation  made  in  premises  in 

front  of  premises  by  independent  contractor 1942 

2148.  Duty  of  traveler  on  highway — May  presume  that  city  has  per- 

formed duty  with  reference  to  streets — Lights  and  guards 

in    streets 1943 

2149.  Adjoining  land  owners — Rights  and  obligations  of,  to  each  other 

— To  what  extent  lower  proprietor  may  dig 1945 


CHAPTER    CXXIV. 
Partnership. 

2150.  What   constitutes    partnership 1946 

2151.  Partnership  may  be  inferred  from  acts  and  conduct  of  parties.  1947 
-152.     Burden    to    prove    partnership 1947 

2153.  Whether  there  was  a  general  agency  between  partners 1948 

2154.  Partners   in  one  transaction 1948 

2155.  Ostensible  partner 1949 

2156.  Right  of  surviving  partner  to  wind  up  firm 1949 

2157.  Partners   may    by    mutual    consent    orally    modify   partnership 

contract — Evidenced    by    books 1950 


CHAPTER    CXXV. 
Perjury. 

2158.  Defined — The    statute 1951 

2159.  Materiality    of    statement 1951 

2160.  Willfully  and  corruptly — Meaning  of 1952 

2161.  Oath    to   be   lawfully    administered 1952 

2162.  Statements  believed   to  be  true 1953 

2163.  More  tlian  one  witness  required  as  proof — Corroboration 1953 


XXXIV  TABLE   OF    CONTENTS. 

CHAPTER    CXXVI. 

Pocket-picking, 
section  page 

2164.  Instructions  in   charge  of   pocket-picking 1955 

2165.  Pocket-picking — Aiding  and  abetting 1956 

2166.  Possession  of  property   recently  stolen   in  the  crime  of  pocket- 

picking    1960 


CHAPTER    CXXVII. 

Railroads  as  Carriers  of  Passengers. 

2167.  Relation  of  carrier  and  passenger  exists,  when 1963 

2768.  Carrier  to  exercise  high  degree  of  care 1963 

2169.  Passenger  must  observe  care  for  his  own  safety 1964 

2170.  Not  bound  to  carry  passengers  on  freight  trains — Duty  of  com- 

pany and  passenger  when  so  carried 1964 

2171.  Duty  to  furnish  safe  passage  going  to  and  from  trains 1964 

2172.  When  failure  to  carry  passenger  safely  is  shown,  burden  cast 

upon    carrier 1965 

2173.  Ticket  agent's  duty   and   authority — Reliance   upon   by   passen- 

ger     1965 

2174.  Duty  of  carrier  as  to  putting  off  passenger  at  destination  not 

stopping  place  for  train — Authority  of  local  ticket  agent 

to  bind  company 1966 

2175.  Right  to  eject  persons  for  failure  to  pay  fare 1967 

2176.  Right  to  eject  passenger   for  failure  to  pay  fare — Liability   if 

unnecessary  force  used — Drunken  or  boisterous  passenger .  1967 

2177.  Wrongful  ejection  of  passenger  through  error  of  judgment.  ...  1969 
217S.     Measure  of  damages  for  wrongful  ejection   of  passenger 1969 

2179.  Duty   to  provide  safe  platform 1970 

2180.  Duty  of  carrier  to  passenger  boarding  train 1970 

2181.  Must  protect  passenger  from  violence 1971 

2182.  Not  liable  for  assault  not  committed  while  in  the  prosecution 

of    master's    business 1972 

2183.  Duty   of  to   stop   its   trains  at   stations   and   of   passengers   to 

get  off 1972 

2184.  Duty  to  passenger  falling  from  train 1973 

2185.  Duty  as  to  stopping  train  for  passengers  to  alight 1974 

2186.  Contributory   negligence   of   passenger 1975 

2187.  Contributory  negligence  of  passenger — Another   form 1976 

2188.  Right   of   passenger   to   remain    in   waiting   room   a   reasonable 

time    1977 

2189.  Negligence    of    sleeping-car   employee — Railroad    company    pre- 

sumed liable  for  injury — Burden  of  proof 1978 


TABLE   OF    CONTENTS.  XXXV 

SECTION  PAGE 

2190.  Injury  to  conductor  riding  on  train  other  than  his  own   with 

consent  of  conductor  in  charge 1979 

2191.  Liability  for  injury  to  passenger  while  assisting  in  caring  for 

sick  passenger — Whether  plaintiff  was  directed  or  per- 
mitted to  assist  in  caring  for  passenger — Duty  of  com- 
pany towards  sick  passenger 1980 


CHAPTER    CXXVIII. 
Railroad  Crossings — Injuries  at. 

2192.  Relative    rights    and    duties    of    company    and    public    to    use 

crossing 1987 

2192a.  Same,  continued — Both  must  use  faculties  to  discover  danger..  1988 

2193.  Duty    (of  deceased)    to  use   senses   on   approaching   crossing — 

Another    form 1988 

2194.  The  giving  of  signals  when  approaching  crossing 1989 

2195.  Signals  for  the  protection  of  persons  about  to  cross  the  track.  .1989 

2196.  Omission  to  ring  bell  and  sound  whistle 1990 

2197.  Relative  duties  of  plaintiff  and  defendant — Plaintiff  may  drive 

on  when  train  standing  stiii 1991 

2198.  Failure   to  look   and  listen,  negligence — Duty  of  defendant   to 

give   warning — View   of   plaintiff 1991 

2199.  Duty  to  provide  safeguards  if  structures  render  crossing  dan- 

gerous— Question  for  the  jury — Negligence  of  pedestrian .  1993 

2200.  Duty  of  driver  of  vehicle  approaching  crossing  when  view  un- 

obstructed,   and    where    obstructed — Duty   when    flagman 
gives  signals — Must  be  free  from  negligence 1994 

2201.  Injury  to  pedestrian  crossing  track — Duty  when  there  is  tem- 

porary obstruction — Standing  on  track  and  failing  to  look 
for  approaching  train  prima-  facie  negligence 1995 

2202.  Train   has   right  of   way — Duty   of   one  about   to   drive   across 

crossing  to  stop  when  train  in  close  proximity 1997 

2203.  Duty  of  driver  of  vehicle  to  look  just  before  crossing  track...  1997 

2204.  Duty  of  engineer  in   approaching  crossings 1998 

2205.  Injury    resulting    from    concurrent    miscalculation    of    engineer 

and  driver  of  vehicle — No  recovery 1999 

2200.  Duty  of  gateman   in   lowering  gates 1999 

2207.  Duty  of  driver  of  automobile  at  crossing 2000 

2208.  Driver  of  an  automobile  may  rely  on  gateman  giving  notice.  .  .2001 

2209.  Driver  of  automobile  placed  in  sudden  peril  at  crossing 2001 

2210.  Imputing  negligence  of  driver  to  occupant  of  automobile 2001 

2211.  Injury  caused  by  backing  train  on  vehicle  at  crossing 2002 

2212.  Injury  to  child  climbing  over  train  stopping  on  crossing — Neg- 

ligence under  such  circumataucett 2002 


XXXVI  TABLE   OF    CONTENTS. 

SECTION  PAGE 

2213.  Same,  continued — Whether  child  climbing  over  train  guilty  of 

contributory  negligence 2004 

2214.  Shunting  cars,  while  making  flying  switch,  across  street  cross- 

ing     2005 

2215.  Presumption  that  every  person  exercises  care  for  his  own  safety 

when  in  danger — Burden  of  proof  on  defendant  to  prove 
decedent  did  not  look  and  listen  before  crossing  track.  .  .  .2006 

2216.  Defendant  liable,  though  statutory  signals  given — When  other 

acts   of   negligence   charged 2006 


CHAPTER    CXXIX. 

Railroads — Miscellaneous    Cases    of    Negligence.      Licensees — Tres- 
passers— Fires — Stock    Blocking    Frogs — Switches. 

2217.  Duty  to  persons  habitually  permitted  to  travel  over  tracks.  .  .2007 

2218.  Common  use  of  railroad  tracks  by  public  as  passageway 2008 

2219.  Injury  to  one  walking  on  track — Company  bound  to  give  warn- 

ing after  discovery 2009 

2220.  Duty  of   company   to   trespassers   on   track — Arises   only   after 

discovery 2009 

2221.  Required  to  guard  against  fire  from  locomotive 2010 

2222.  Negligent  communication  of  fire  from  engine 2010 

2223.  Injury  to  stock  on  railroad 2012 

2224.  Escape  of  horse  by  reason  of  insufficient  fence 2013 

2225.  Misplacement  of  switch  for  criminal  purpose 2013 

2226.  Failure  to  block  a  frog 2014 

2227.  Omission  to  adjust,  fill  or  block  switch 2014 

2228.  Liability  of  company   for   injury  to  person  standing  on   depot 

platform,  from  mail-pouch  thrown  from  mail-car 2018 

2229.  Injury  to  person  traveling  on  right  of  way  long  used  by  public 

caused  by  lump  of  coal  falling  from  car,  producing  un- 
conscious condition,  being  struck  by  yard  engine  while 
in  such  condition 2019 


CHAPTER    CXXX. 
Rape,  and   Assaults  to  Commit. 

2230.  Defined  2026 

2231.  Consent    of    female 2026 

2232.  Carnal  knowledge  complete,  when 2027 

2233.  Capacity — Burden  of  proof  when  accused  under  fourteen  years 

of   age 2027 

2234.  Evidence  as  to  the  character  of  the  woman 2028 

2235.  Resistance— Evidence    2028 


TABLE   OF    CONTENTS.  XXX vii 

SECTION  PAGE 

2236.  Assault  with  intent  to  commit  rape 202!) 

2237.  Same,  continued — Force — Consent,  etc 2030 

2238.  Same,  continued — Declarations  of  prosecuting   witness 2031 


CHAPTER    CXXXI. 
Replevin. 

2239.  Short  general   instruction 2033 

2240.  Replevin  of  property  of  wife  seized  on  execution  against  hus- 

band   2034 

2241.  Conclusion  of  charge  in  replevin 2030 

2242.  Replevin — Annual  products  of  the  earth 2037 

2243.  Crowing  fruit — Whether  personalty  under  any  circumstances.  .2037 

2244.  Replevin  of  property  by  vendor  when  vendee  was  insolvent  and 

did  not  intend  to  pay  for  same 2038 

2245.  Effect  of  mortgage  given  upon  goods  fraudulently  bought 2040 

2246.  Chattel   mortgagee   may    prosecute   action    for    replevin — When 

mortgage  attacked  as  fraudulent 2041 

2246a.  Replevin  of  hogs  by  wife  from  purchaser  on  execution  against 

husband     2042 


CHAPTER    CXXXII. 
Robbery. 

2247.  Instructions  in  charge  of  robbery 2051 

2248.  Taking  property   in   presence   or  under   the   immediate  control 

of  another 2053 

2249.  Conspiracy  to  rob 2054 

2250.  Conspiracy  in  the  commission  of  robbery 2054 

2251.  Character  of  evidence  to  prove  conspiracy 2055 

2252.  Liability  independent  of  conspiracy 2056 

2253.  Assault    with    intent    to    rob — Violence    concomitant    with    the 

taking    2056 


CHAPTER    CXXXIII. 
Saxes — Warranty. 

2254.  Sale— When  complete 2058 

2255.  What  constitutes  valid  sale — Fraudulent  contract 2059 

2256.  Sale  on  credit 2060 

2257.  Representations   as   to   financial   condition    invalidating — Insol- 

vency of  buyer — Intention — Persons  presumed  to  antici- 
pate probable  consequences  of  known  conditions 2061 


XXXV111  TABLE   OF    CONTENTS. 

SECTION  PAGE 

2258.  What  language  constitutes  warranty  in  sales 2062 

2259.  Buyer    having    opportunity    to    inspect — Caveat    emptor — Rule 

applies  unless  express  or  implied  warranty 2062 

2260.  Recoupment  of  damages  where  vendee  has  used  property  under 

warranty  as  to  quality 2063 

2261.  Notice  of  rescission,  when  necessary 2064 

2262.  Sale  through  mistake  may  be  rescinded  in  action  for  purchase 

price,  when 2064 

2263.  Whether  delivery  of  wheat  to  mill  a  sale 2065 

2264.  Action   to   recover    purchase    price   on   sale — When    article   un- 

suitable for  use — Must  be  rescission  and  tender  back... 2067 

2265.  Acceptance  and   continued   use   of   thing   sold   after   knowledge 

that  it  will  not  work 2069 

2266.  Fraud  and  deceit  in   sale   of  property — Parties  dealing  on   an 

equality   2070 

2267.  Same,    continued — Opportunity    of    inspection 2070 

2268.  Same,   continued— What    commendations    may   be    made — Deal- 

er's  talk 2071 

2269.  Expression    of    opinion    by    seller    as    to    amount,    value    and 

quality 2071 

2270.  Breach  of  warranty  in  sale  of  horse 2072 


CHAPTER    CXXXIV. 
Statutes    of   Limitations. 

2270a.  Revival  of  debt  by  promise 2076 

2271.  New  promise  to  be  in  writing 2076 

2272.  Limitation  upon  an  account 2076 

CHAPTER    CXXXV. 
Street   Railways. 

2273.  High  degree  of  care  required  of  common  carrier 2080 

2274.  Company  owes  utmost  or  highest  degree  of  care  to  passenger.  .2081 

2275.  Duty  of,  as  common  carriers  and  as  to  cars  and  appliances.  .  .  .2082 

2276.  Railway  company  not  an  insurer — Bound  not  to  expose  passen- 

ger  to   hazards — Incidental  hazards   assumed  by   passen- 
ger     2083 

2277.  Relation  of  passenger  created  on  acceptance  of  fare 2084 

2278.  Company  bound  for  acts  and  improper  conduct  of  employees.  .2084 

2279.  Acceptance  of  person  as  passenger  creates  relation 2085 

2280.  Relation   of   passenger  ceases  when   he   has   safely   alighted   on 

the   street 2085 

2281.  Starting  car  before  passenger  seated 2085 


TABLE   OF    CONTENTS.  XXXix 

SECTION  PAGE 

2282.  Injury  while  boarding  car 2086 

2283.  Negligence  in  boarding  car  while  in  motion 2088 

2284.  Boarding  car  while   in  motion — Another  form 2088 

228.1.     Injury  to  one  who  claims  to  have  attempted  to  board  car  at 

crossing,  where  defense  is  that  the  attempt  was  to  board 
while  car  moving  between  streets — A  short  charge 2089 

2286.  Contributory  negligence  in  boarding  moving  street  cars 2091 

2287.  Duty  to  stop  at  usual  stopping  places — Passenger  on  signaling 

attempting  to  board  before  it  stops 2092 

2288.  Duty  to  stop   car  long  enough   to  afford   passenger  reasonable 

opportunity  to  alight 2092 

2289.  Duty  to  assist  passenger  in  alighting — Question  for  jury 2092 

2290.  Injury   to  passenger   while  leaving  car  by   being  thrown  from 

car    2093 

2291.  Duty  to  stop  car  when  desired  stop  communicated  to  conductor 

on  boarding   car 2094 

2292.  Injury  to  passenger  while  alighting  from  car 2096 

2293.  Stopping  cars  for  passengers  to  alight — Duty  of  conductor  as 

to   passenger    alighting 2099 

2294.  Injury  while  alighting  from  car  by  catching  clothing  on  car — 

Duty  of  passenger  and  company 2101 

2295.  Ejection     of    passengers    for    refusal    to    pay    fare — Transfer 

tickets   2102 

2296.  Damages  for  wrongful   ejection  of  passenger 2103 

2297.  Duty  of  railway  to  travelers  in  street 2104 

2298.  Duty  to  use  ordinary  care  to  pedestrian 2105 

22!)9.     When    motorman    may    assume    that    pedestrian    will    get    out 

of   danger 2105 

2300.  Pedestrian  may  assume  motorman  will  use  due  care 2106 

2301.  Ordinary  care  required  of  person  about  to  cross  track  at  street 

crossing 2106 

2302.  Injury  to  person  on  track — Duty  of  motorman — May  presume 

pedestrian  will  be  prudent — Plaintiff  may  presume  com- 
pany will  not  be  negligent 2107 

2303.  Relative    rights    and    duties    of    pedestrian    and    street   cars    in 

streets   2108 

2304.  Duty  of  employees  when  car  crossing  street  intersection  where 

car  on  opposite  track  discharging  passengers 2108 

2305.  Duty    in   avoiding   injury  to  children,  apparently   intending  to 

cross  street 2108 

2306.  Duty  of  parents  in  permitting  children  to  go  in  streets 2109 

2307.  Injury   to  conductor   by    being  struck   by   telephone    pole   while 

walking  along  running  board  of  car 2109 

2308.  Injrv  to  passenger  while  assisting  driver  of  street  car 2114 

2309.  Bound   by  acts  of — Conductor  and   motorman   in  scope  of  em- 

ployment   2115 


Xl  TABLE   OF    CONTENTS. 

SECTION  PAGE 

2310.  Reciprocal  rights  of  vehicles  and  street  cars 2115 

2311.  Duty  of  driver  of  vehicle  to  look  before  crossing 2115 

2312.  Duty  of  driver  to  stop  vehicle  before  crossing  track  when  car 

approaching,   when 2116 

2313.  Collision  between  vehicle  and  street  car  at  street  crossing 2116 

2314.  Injury  to  driver  of  vehicle  at  street  crossing 2122 

2315.  Injury  to  passenger  in  hired  automobile  from  collision  between 

street  car  and  automobile — By  joint  negligence  of  both — 
Action  against  both 2128 

2316.  Street  car  colliding  with  automobile  stalled  on  track  on  dark 

night    2136 

2317.  Duty  of  motorman  on  meeting  horse  coming  in  opposite  direc- 

tion becoming  frightened 2142 

2318.  Duty  of  driver  of  wagon  in  crossing  track  at  street  crossing — 

Ordinary  care — Look  and  listen 2142 

2319.  Duty  of  driver  of  vehicle  about  to  cross  track  at  street  cross- 

ing— Ordinary  care  only  required 2143 

2320.  Driver   of   vehicle    arriving    at    street   crossing    in    advance    of 

street  car  has  prior  right  to  cross 2143 

2321.  Relative   rights   of   street  car   and   driver  of   vehicle   at   street 

crossing 2144 

2322.  Duty  of  motorman  to  discover  vehicle  about  to  cross  track  and 

avoid    injury 2145 

2323.  Contributory  negligence  of  children  at  crossings 2145 

2324.  Presumption  of  negligence  from  collision — Burden  cast  on  de- 

fendant  2146 

2325.  Prima  facie  negligence   from  collision 2146 

2326.  When  person  signals  car  intending  to  board  it  is  to  be  treated 

as  passenger 2147 


CHAPTER    CXXXVI. 

Sureties. 

2327.  Liability  of  sureties  on  bond   of  agent,  where  agent  had   pre- 

viously defaulted — Duty  of  company  to  sureties 2148 

2328.  Contract  strictly  construed — When   creditor  accepting   sureties 

bound  to  inform  them  as  to  the  business  of  suretyship — 
Security  for  pre-existing  debt 2149 


CHAPTER    CXXXVII. 

Tender. 

2329.     Definition  and  object  of  tender 2153 


TABLE   OF    CONTENTS.  xli 

CHATTER    CXXXVIII. 
Wills. 

SECTION  pAGJr 

2330.  Who  may  make  a  will 2155 

2331.  Requirements  of  a  valid  will 2156 

2332.  Witnesses   need   not   see  testator   sign    if   acknowledged    before 

them 2156 

2333.  Declarations  of  testator  to  show  condition  of  mind 2157 

2334.  Instructions  to  jury  in  contest  of  will 2158 

2335.  Insane   delusion 2165 

2336.  Old  age  and  sickness  as  affecting  mental  capacity 2168 

2337.  A  concise  charge  in  will  contest  in  different  form 2169 

2338.  Consideration  of  the  will  itself 2173 

2339.  What,  if  anything,  may  be  inferred  from  will 2174 

2340.  Moral  depravity — As  affecting  mental  capacity — Notable  charge 

of  Longworth,  J 2174 

2341.  Undue   influence — What   constitutes — Another  form 2178 

2342.  Undue  influence — Longworth.  J 2.17!) 

2343.  Undue   influence — Tersuasion    to   make   will — Flattery,   appeaT 

to    affection 2180 

2344.  Nuncupative  will — Words  written  down  not  those  spoken 2181 


PART  II. 

Instructions  to  Jury — Civil  and 
Criminal 


1095 


CHAPTER    LXIV. 
PROVINCE  OF  COURT  AND  JURY. 

SEC.  SEC. 

1450.   Relation    of    court,    jury    and        1458.  Appropriate    remarks    in    the 
attorney — Zeal    of    conn-  opening  of  a  charge, 

sel.  1459.  Another       form      of     opening 

1457.  Introductory    in   criminal  case  statement. 

— Province  of  jury  to  as- 
certain truth — Province 
of  court — Of  attorneys. 

Sec.  1456.     Relation    of    court,    jury    and   attorney — Zeal    of 
counsel. 

For  fear  that,  the  heated,  overweaning  zeal  of  counsel  may  tend 
to  lead  some  of  you  away  from  the  dignity  and  importance  of 
a  judicial  trial,  and  your  positions  and  duties  as  jurors,  you  are 
admonished  that  you  should  not  by  any  means  be  misled  from 
the  calm,  staid,  intelligent,  impartial  consideration  of  the  matter 
submitted  to  you.  The  discharge  of  your  duties  is  a  matter  of 
very  grave  moment  not  only  to  the  parties  to  the  suit,  but  to 
the  public  welfare  The  amount  involved  is  of  great  conse- 
quence to  the  parties,  but  the  righteousness  of  the  proceedings 
of  this  court  is  of  much  greater  importance. 

The  duties  of  the  court  and  yourselves  are  decidedly  different 
from  those  of  the  attorneys,  who  frequently  in  their  zeal,  on  the 
spur  of  the  moment,  go  beyond  what  they  would  approve  in  their 
deliberate  moments. 

It  is  one  of  the  fundamental  maxims  of  our  profession,  that 
the  lawyer  must  be  true  to  his  client,  loyal  to  his  (^vt'vy  interest, 
and  that  he  must  permit  no  stone  to  be  unturned  in  his  efforts 
to  sec  that  the  righl  of  his  client  is  properly  vindicated,  and  if 
some  do  exercise  more  zeal  than  judgment,  a  zeal  thai  never 
ought  to  affect  you,  and  never  ought  to  affect  the  court.     Your 

1097 


1098  INSTRUCTIONS  TO  JURY. 

duty  is  to  determine  from  the  evidence  in  the  case,  what  the 
facts  are  and  where  the  rights  of  the  parties  lie,  irrespective  of 
party,  without  fear,  feeling  or  favor.  Both  parties  to  this  con- 
tention and  the  public  look  to  you,  gentlemen,  to  discharge  your 
duty  in  a  dignified,  self-respecting  manner,  to  discharge  it  so 
that'  confidence  may  be  properly  reposed  in  your  final  deter- 
mination of  the  issues  submitted  to  you ;  and  that  the  dignity 
and  righteousness  of  the  administration  of  public  justice  by  the 
court  be  exalted  and  loyally  be  upheld  by  you.  The  court  as 
the  representative  of  the  law  desires  that  you  should  enter  upon 
your  deliberations  and  discharge  your  duties  in  that  spirit,  and 
only  in  that  spirit. 

Sec.  1457.  Introductory  in  criminal  case — Province  of  jury  to 
ascertain  truth — Province  of  court — Of  attor- 
neys. 

You  have  heard  the  evidence  offered  before  you  on  both  sides 
of  the  case.  From  that  evidence  you  learn  what  the  facts  are; 
you  extract  the  truths  of  the  case.  That  is  your  province.  But 
you  are  not  able  by  those  facts,  those  truths,  alone,  to  arrive  at 
a  verdict ;  because  there  is  something  else  that  enters  into  the 
verdict,  and  that  is  the  law  that  is  applicable  to  the  facts,  to  the 
truths.  These  two  elements  enter  into  and  make  up  every  verdict 
of  a  jury.  It  is  from  the  court,  and  from  no  one  else,  that  you 
receive  the  law. 

It  is  the  express  duty  of  the  court — commanded  by  statute — 
to  charge  you  as  to  the  law  of  the  case ;  to  inform  and  instruct 
you  what  are  the  elements  of  the  crime  of  which  the  prisoner 
is  accused ;  what  is  the  measure  or  quantity  of  the  evidence  neces- 
sary to  convict  him ;  what  evidence  is  insufficient  to  convict  him ; 
and  for  what  purpose  some,  or  all,  of  the  evidence  introduced 
is  to  be  applied  by  you ;  and  it  is  your  imperative  duty  to  con- 
form your  findings  to  these  instructions. 

It  is  the  privilege  of  the  court,  in  charging  you,  to  sum  up 
the  evidence,  to  review  the  facts,  in  order  to  aid  you  in  the 
ascertainment  of  the  truth,  but  not  to  usurp  your  province  and 


PROVINCE  OF  COURT   AND  JURY.  1099 

prerogative;  for  there  is  nothing  which  the  court  may  say  that 
can  absolve  you  from  the  duty  of  finding  the  facts  for  yourselves. 

Therefore  if,  in  this  charge,  there  should  be  a  review  of  any 
of  the  facts,  you  will  remember  that  it  is  not  binding  on  you  in 
the  manner  that  the  instructions  touching  the  law  are,  but  that 
it  is  only  advisory,  to  aid  you ;  and  that  you  are  left  with  entire 
freedom,  and  a  perfect  obligation  resting  upon  you,  to  decide 
the  questions  of  fact  for  yourselves. 

This  is  a  case  of  unusual  magnitude.  It  is  not  surprising, 
therefore,  that  the  attorneys,  in  their  anxiety  and  zeal,  should 
have  urged  upon  you  some  topics  and  considerations  which 
have  no  pertinence  to  the  case,  and  which  should  have  no  influ- 
ence upon  the  minds  of  oath-respecting  jurors  when  they  come 
to  determine  the  case. 

The  attorneys  had  a  wide  range  of  discussion.  They  had  the 
fullest  freedom  of  argument  before  you  upon  every  question  of 
fact,  and  before  the  court  upon  every  question  of  law.  It  was 
their  privilege  to  analyze  the  evidence;  to  arraign  the  conduct 
of  the  prisoner  and  0.  (the  deceased),  and  all  others  concerned 
in  the  transaction  which  has  been  investigated;  to  characterize 
and  impugn  their  motives,  if  the  evidence  justified  it;  to  assail 
the  credibility  of  the  witnesses  who  were,  either  directly  or  indi- 
rectly, impeached ;  and  to  give  full  play  to  their  wit  and  imagina- 
tion in  the  illustration  and  adornment  of  their  argument.  But 
this  does  not  mean  that  they  had  the  right  to  make  statements 
of  facts  not  sustained  by  the  evidence  or  to  urge  upon  you  con- 
siderations outside  the  case. 

Open  and  explicit  appeals  were  made  by  them  to  your  sym- 
pathy, to  your  commiseration;  pathetic  allusions  were  made  to 
the  distressed  and  sorrowing  families  of  those  who  were  con- 
cerned in  the  transaction  under  investigation. 

You  must  exclude  from  your  minds,  promptly,  manfully  and 
absolutely,  ;ill  impressions  and  convictions  which  may  have  found 
lodgment  there,  either  consciously  or  unconsciously,  that  are 
not  made  by  the  evidence  or  the  law.  When  you  come  1<>  the 
'ousideration  of  this  case  upon  its  merits,  you  should  not  permit 


1100  INSTRUCTIONS  TO   JURY. 

the  suggestions,  allusions,  statements  and  arguments  about  the 
distress  and  sorrow  of  the  families  interested,  and  about  the  con- 
tents of  said  articles  to  have  any  weight  or  influence  upon  your 
minds.  Lay  them  aside  as  wholly  irrelevant  to  the  issue,  which 
must  be  considered  and  determined  by  you  strictly  upon  the 
evidence  introduced  and  the  law  given  to  you  by  the  court. 
With  the  consequences  of  your  verdict  you  should  not  be  con- 
cerned. The  evidence,  with  such  reasonable  deductions  as  may 
properly  be  drawn  therefrom,  together  with  the  law  of  the 
court's  charge,  should  alone  be  looked  to  in  reaching  your  con- 
clusions and  in  arriving  at  your  verdict. 

With  the  dispensation  of  mercy  you  have  nothing  to  do.  You 
the  ministers  of  justice  and  not  of  mercy.  The  administration 
of  mercy  is  a  function  that  belongs  to  the  governor  of  the  state, 
aided  by  the  board  of  pardons. 

In  a  civilized  state  like  this,  it  is  absolutely  essential  to  the 
preservation  of  social  order  that  the  law  should  be  enforced, 
and  especially  in  cases  where  acts  of  violence  have  been  done. 
The  laws  must  be  obeyed,  violators  of  the  law  must  be  punished; 
and  you  as  jurors  would  be  faithless  to  your  trust  if  you  should 
return  a  verdict  of  acquittal  in  this  case  when  the  facts  demand 
a  conviction  of  the  prisoner. 

It  is  equally  important  that  innocence  should  not  be  punished. 
You  were  impaneled,  not  for  vengeance,  but  to  subserve  the  ends 
of  public  justice ;  and  you  would  be  disloyal  to  your  obligations 
if  you  should  find  the  prisoner  guilty  when  the  evidence  required 
his  acquittal. 

This  much  has  been  said  to  impress  you  with  a  sense  of  the 
responsibility  which  you  owe  to  your  consciences  and  oaths,  that 
your  verdict  should  be  honest,  intelligent  and  in  conformity  to 
the  evidence  and  the  law. 

Sec.  1458.     Appropriate  remarks  in  the  opening  of  a  charge. 

"The  court  knows  of  no  more  important  public  duty  than  you 
are  now  engaged  in.  You  constitute  an  indispensable  part  of 
the  court  whose  offices  are  just  as  important  and  dignified  as 


PROVINCE  OF  COURT  AND  JURY.  1101 

those  of  the  judge  presiding.  The  courts  thus  constituted 
are  the  supreme  power  that  finally  determines  all  litigated  con- 
tentions, and  to  whose  power  all  the  people  and  every  public 
officer  of  the  state  must  yield.  Hence  you  see  that  the  people 
justly  take  a  deep  interest  in  the  determinations  of  jury 
trials.  Public  confidence  is  strengthened  or  shaken  as  the  jurors 
discharge  intelligently  or  loosely  their  duties.  I  make  these 
suggestions  because  I  want  to  impress  upon  your  minds  that  the 
final  duty  which  you  are  about  to  perform  is  one  of  very  great 
importance,  and  one  that  deeply  concerns  the  public  welfare  as 
well  as  the  litigating  parties.  You  have  been  carefully  selected 
from  the  citizens  of  the  count/'  because  of  your  special  fitness 
and  qualification  to  discharge  these  important  duties.  It  is 
fair  to  say  that  the  experience  of  mankind  goes  to  show  that  the 
candid,  impartial  judgment  of  ten  or  eleven  men  is  a  safer- 
guide  tban  that  of  one  or  two,  equally  candid,  intelligent  and 
impartial  men;  and,  while  one  or  two  men  may  be  right  in  their 
convictions,  yet  it  is  safer  for  them  to  consider  well  the  sources 
of  their  convictions  before  they  finally  decide  against  the  agree- 
ment. Yet  every  juror  should  feel  that  it  is  his  duty  not  to 
yield  a  well-grounded  conviction  because  it  does  not  accord  with 
the  convictions  of  his  fellow  jurors.  Roth  parties  to  this  action 
are  entitled  to  the  independent  and  best  judgment  of  each  juror. 
A  disagreement  should  not  be  had  when  an  agreement  can  be 
reasonably  secured  by  an  impartial,  candid  and  fair  concurrence 
of  the  individual  judgment  of  each  juror.  You  may  well  remem- 
ber that  if  this  jury  disagree,  that  this  contention  must  be  settled 
finally  by  a  jury  of  twelve  men,  in  no  respect  better  qualified 
to  try  the  issue  of  fact  than  you  are,  and  upon  no  better  presen- 
tation of  the  case  to  them.  An  honest,  candid  and  independent 
discussion  leads  to  truth,  heated  controversy,  to  disagreement. 

Sec.  1459.     Another  form  of  opening  statement. 

Before  you  enter  upon  the  discharge  of  your  duty  in  the 
promises,  it  is  encumbent  upon  the  court  t<>  assist  you  by  giving 
you  certain  instructions  upon  the  law  that  it  considers  applicable 


1102  INSTRUCTIONS  TO  JURY. 

to  this  case.  There  can  be  no  doubt  whatever  in  your  minds 
as  to  whether  the  court  is  correct  or  not  in  its  conclusions  and 
instructions  respecting  the  law.  It  is  the  duty  of  the  court  to 
instruct  you  in  this  respect,  and  it  is  your  duty  to  act  in  ac- 
cordance with  those  instructions.  If  the  court  should  err  in  its 
statement  of  the  law,  it  does  not  concern  you,  for  there  is  a 
remedy  provided  for  reviewing  the  action  of  the  court  by  a 
higher  tribunal,  and  correcting  any  errors  that  may  have  been 
made.  You  must,  therefore,  take  the  law  as  given  you  by  the 
court. 

You  are  the  tryers  of  the  facts,  and  in  that  respect  the  court 
has  no  supervision  over  you.  The  individual  judgment  of  the 
juror  acting  candidly  is  the  only  guide  for  him  in  determining 
the  facts  in  this  case  from  the  evidence.  If  the  court  has  made 
any  statement  of  fact  resulting,  or  to  be  drawn  from  the  testi- 
mony, it  is  an  oversight  and  should  not  be  considered  by  you. 
The  court  has  no  right  or  business  to  intimate  to  you  any  con- 
clusion of  fact  drawn  from  the  testimony  that  you  are  to  con- 
sider, nor  have  you  any  right  to  form  an  opinion  whatever  as 
to  what  the  court  may  think  of  the  facts,  or  as  to  which  had  the 
approval  in  this  case.  Very  frequently  jurors  will  watch  very 
closely  to  discover,  if  possible,  what  may  seem  to  be  the  bent  of 
the  court's  mind  upon  the  facts,  so  as  to  discover  what  the  court 
thinks  about  them.  This  you  must  steadily  refrain  from  doing, 
as  it  matters  not  what  the  court  may  think  about  the  facts.  The 
law  very  properly  has  made  twelve  men  an  essential  constituent 
part  of  the  court,  whose  duty  in  determining  the  facts  is  as  im- 
portant as  that  of  the  court  trying  the  case  and  determining 
the  law  applicable  to  it.  And  you  are  to  exercise  in  all  your 
deliberations,  the  judgment  of  candid,  intelligent  men,  who  are 
anxious  only  to  get  at  the  truth.  You  should  be  especially 
careful  that  you  be  guided,  in  the  conclusion  to  which  you  come, 
by  the  evidence  submitted  to  you  and  the  instructions  of  the 
court,  and  nothing  else.  The  public  welfare  depends  more  upon 
the  intelligence  and  impartiality  and  just  deliberation  of  the 
jurors  in  the  cases  submitted  to  them  than  upon  the  discharge 


PROVINCE  OF  COURT  AND  JURY.  1103 

of  any  other  public  duty  that  falls  to  your  lot.  If  you  discharge 
your  duties  well,  if  you  challenge  the  respect  of  the  community 
by  the  justice,  intelligence  and  impartiality  of  your  decision 
made,  you  will  command  the  respect  and  confidence  of  the  people 
in  our  courts.  It  is  of  prime  consequence  that  jurors  should  be 
grave,  that  they  respect,  and,  while  respecting  a  sense  of  public 
justice,  that  they  exalt  the  administration,  so  that  neither  party 
shall  have  any  cause  to  feel  that  their  case  has  not  been  impar- 
tially and  fairly  considered. 


CHAPTER    LXY 
ABORTION. 


1460.  Abortion    by    physician — Gen-  1462.  Testimony   of   husband   as   ac- 

eral  charge.  complice. 

1.  Statement  of  charge.  1463.  Belief    that    uterus    contained 

2.  Provision    of    statute — Es-  dead  foetus. 

sential  elements  of  crime.  1464.   Presumption  of  innocence  con- 

3.  Intent     with    which     drug  tinues  until  verdict. 

administered.  1465.  Unwise   to   convict    on    uncor- 

4  Claim    that    drug    adminis-  roborated     testimony    of 

tered   to    relieve   of   dead  accomplice. 

foetus.  1466.  Reasonable  doubt  as  to  intent 

5.  Good   character    of    practi-  — Reasonable  probability 

tioner.  of  innocence  creates  rea- 

1461.  Flements  of  crime.  sonable  doubt. 

Sec.  1460.     Abortion  by  physician — General  charge. 

1.  Statement  of  charge. 

2.  Provision  of  statute — Essential  elements  of  crime. 

3.  Intent  with  which  drug  administered. 

4.  Claim  that  drug  administered  to  relieve. 

5.  Good  character  of  practitioner. 

1.  Statement  of  charge.  The  defendant  here  on  trial  is 
J.  W.  T.  The  crime  charged  in  the  first  count  of  the  indictment 
is  that  the  defendant  caused  the  death  of  one  N.  E.  by  admin- 
istering a  certain  drug  called  chloroform  to  the  said  N.  E.,  with 
intent  on  the  part  of  the  defendant  to  procure  a  miscarriage 
of  said  N.  E. 

2.  Provision  of  statute — Essential  elements  of  crime.  It  is 
provided  by  the  statute  of  this  state  that  "whoever  with  intent 
to  procure  the  miscarriage  of  a  woman  prescribes  or  administers 
to  her  a  medicine,  drug  or  substance,  or  with  like  intent  uses  an 
instrument  or  other  means,  unless  such  miscarriage  is  necessary 

1104 


ABORTION.  1 1  05 

to  preserve  her  life,  or  is  advised  by  two  physicians  to  be  neces- 
sary for  that  purpose,  if  the  woman  cither  miscarries  or  dies 
in  consequence  thereof,  shall  be"  punished  as  provided  by 
statute.1 

To  constitute  the  offense  charged  in  the  said  first  count  of  the 
indictment,  it  is  essential  that  the  proof  show  that  on  or  about 
the  time  named  in  the  indictment  the  defendant  unlawfully,  will- 
fully and  knowingly  did  administer  or  cause  to  be  administered, 
and  caused  to  be  taken  by  the  said  N.  E. — the  said  X.  E.  being 
then  and  there  pregnant  with  child — a  certain  quantity  of  a 
certain  poisonous  drug,  to-wit,  a  drachm  more  or  less  of  chlo- 
roform ;  that  said  chloroform  was  then  and  there  administered 
to  the  said  N.  E.  by  the  defendant  with  the  intent  on  the  part 
of  the  defendant  then  and  there  to  procure  a  miscarriage  of  the 
said  N.  E.;  that  said  miscarriage  was  not  then  and  there  neces- 
sary to  preserve  the  life  of  the  said  N.  E.,  and  then  and  there 
had  not  been  advised  by  two  physicians  to  be  necessary  for  said 
purpose;  that  in  consequence  of  the  administering  of  said  chlo- 
roform to  said  N.  E.  the  said  N.  E.  then  died. 

One  of  the  essential  elements  of  the  offense  here  charged  is 
the  intent  with  which  the  defendant  administered  or  caused  to 
be  administered  and  taken  said  chloroform  to  the  said  N.  E. 

3.  Intent  with  which  drug  administered.  The  intent  with 
which  an  act  is  committed  being  but  a  mental  state  of  the 
accused,  direct  proof  is  not  required  nor  can  it  ordinarily  be 
so  shown,  but  intent  is  generally  established  by  all  the  fads  and 
circumstances  attending  the  doing  of  the  act  complained  of  as 
shown  by  the  evidence. 

If  the  defendant  administered  or  caused  to  1  e  administered 
to  said  N.  E.  at  said  time  and  place  such  chloroform — if  said 
N.  E.  was  then  and  there  pregnant — you  will  then  inquire  for 
what  purpose  said  chloroform  was  administered  to  the  said  N.  E. 

If  you  find  from  the  evidence  that  the  defendant,  on  or  about 
the  time  and  place  named  in  the  indictment,  either  himself,  or 
it*  he  caused  or  directed  another  person  so  to  do — that  is,  to 
administer  chloroform  to  N.  E. — if  N.  E.  was  then  ;\i)(\  there 
pregnant  with  child — then  you  will  find  and  determine  from  the 


1106  INSTRUCTIONS  TO   JURY. 

evidence  under  the  instructions  of  the  court  for  what  purpose 
such  chloroform  was  administered  to  the  said  N.  E. 

If  you  find  by  the  evidence  that  the  purpose  and  intention  of 
the  defendant  was  then  and  there  to  procure  a  miscarriage  of 
the  said  N.  E.,  and  if  the  administration  of  said  chloroform  was 
one  of  the  means  or  agents  employed  by  the  defendant  in  the 
execution  of  the  intention  on  his  part  to  procure  a  miscarriage 
of  the  said  N.  E.,  and  if  you  find  that  in  consequence  of  the 
administering  of  said  chloroform  to  said  N.  E.  by  the  defendant 
— if  such  you  find — with  the  intent  aforesaid,  and  if  the  said 
N.  E.  then  died,  and  if  you  further  find  that  such  miscarriage 
was  not  necessary  to  preserve  the  life  of  the  said  N.  E.,  or  had 
not  been  advised  by  two  physicians  for  that  purpose,  then  the 
defendant  would  be  guilty  of  the  offense  charged. 

4.  Claim  that  drug  administered  to  relieve  of  dead  foetus.  The 
defendant  claims  that  he  caused  to  be  administered  to  the  said 
N.  E.  said  chloroform  in  order  to  relieve  the  said  N.  E.  of  what 
he  believed  to  be  a  dead  foetus,  to  remove  such  from  the  uterus, 
and  claims  that  he  had  no  purpose  or  intention  to  procure  a 
miscarriage  on  the  said  N.  E.  If  you  find  that  the  defendant 
had  no  intention  at  said  time  and  place  to  procure  a  miscarriage 
on  said  N.  E.  when  he  administered  such  chloroform  to  her,  or 
caused  such  chloroform  to  be  at  said  time  administered  to  her, 
then  you  should  acquit  him.  If  the  removal  of  said  foetus  was 
then  necessary  to  preserve  the  life  of  the  said  N.  E. — if  such  you 
find — the  defendant  would  not  be  guilty  of  the  crime  here 
charged,  and  you  should  so  find. 

5.  Good  character  of  practitioner.  Some  evidence  has  been 
adduced  by  the  defendant  tending  to  show  his  previous  good 
character  as  an  honest  practitioner  in  the  practice  of  medicine, 
and  that  evidence  you  are  to  consider  in  the  case  precisely  the 
same  as  the  rest  of  the  testimony.  A  defendant  in  a  criminal 
case  has  the  right  to  put  in  evidence  concerning  his  former 
good  character,  that  is,  his  previous  life.  It  is  evidence  tending 
to  raise  a  probability  that  one  who  had  such  a  character  would 
not  commit  a  crime.  It  is  not,  however,  conclusive.  It  is  simply 
evidence  to  be  considered  with  all  the  other  testimony  in  the 


ABORTION.  1107 

case  for  the  purpose  of  determining  whether  the  proof  taken  as 

a.  whole  establishes  his  guilt  beyond  a  reasonable  doubt.     If  it 

does  not,  even  this  evidence  may  of  itself  create  a  reasonable 

doubt,  and  if  it  does,  he  is  entitled  to  the  benefit  of  that  doubt, 

but  if,  when  you  come  to  take  the  evidence  of  character,  together 

with  all  the  other  testimony  submitted  for  your  consideration. 

you  are  satisfied  when  you  look  at  it  and  consider  and  weigh  the 

effect  upon'your  minds  and  judgment,  if,  ultimately,  your  minds 

are  convinced  beyond  a  reasonable  doubt  that  the  defendant  is 

guilty,  then,  notwithstanding  his  standing  and  position  in  the 

community — that  is,  his  previous  good  character,  he  is  guilty 

of  the  crime,  it  is  your  duty  to  so  pronounce  by  your  verdict'.2 

i  Code,  sec.  12412. 

2  State  v.  Tippie,  Franklin  County  Com.  PI.,  Evans  J.  Affirmed,  88  O. 
S.  — . 

Sec.  1461.     Elements  of  the  crime. 

The  jury  is  instructed  that  if  you  find  from  the  evidence  in 
this  case  beyond  a  reasonable  doubt  that  the  deceased,  N.  E.,  at 
the  time  stated  in  the  indictment  was  a  woman  pregnant  with 
child;  and  that  the  defendant  administered  to  the  deceased,  or 
ordered  it  to  be  administered  to  the  deceased,  with  the  intent 
to  procure  a  miscarriage,  that  is,  with  the  intent  that  either  the 
chloroform  itself  should  produce  a  miscarriage,  or  that  by  its 
influence  as  an  anaesthetic  and  with  the  use  of  any  other  instru- 
ment or  means  he  might  procure  a  miscarriage,  and  such  mis- 
carriage was  not  necessary  to  save  the  life  of  the  deceased,  and 
was  not  advised  by  two  physicians  to  be  necessary  for  that  pur- 
pose, and  that  the  deceased  died  in  consequence  of  the  chloroform 
administered  or  ordered  to  be  administered  by  the  defendant 
with  the  intent  to  procure  such  miscarriage,  then  the  defendant 
would  be  guilty  under  the  first  count  in  the  indictment,  and  you 
ought  by  your  verdict  to  say  so.1 

i  Request  by  State  given  in  State  v.  Tippie.  Franklin  Co.  Com.  PI.,  Evans 
J.  Affirmed,  88  O.  S.  — .  If  death  results  when  drug  admin- 
istered without  intent  to  kill,  but  to  procure  miscarriage,  it  is 
abortion.  Robbins  v.  Stale,  8  O.  S.  131.  Offense  complete  if  drug 
administered  with  such  intent  at  any  time  during  gestation.  Wil- 
son v.  State,  2  O.  S.  319. 


1108  INSTRUCTIONS  TO   JURY. 

Sec.  1462.     Testimony  of  husband  as  accomplice. 

It  is  the  duty  of  the  court  to  charge  you  that  you  ought  not 
to  convict  upon  the  uncorroborated  testimony  of  an  accomplice 
If  you  find  that  there  is  no  other  evidence  of  the  commission  of 
this  crime  against  the  defendant  than  that  which  comes  from 
the  husband  of  the  deceased,  you  ought  not  to  convict  the  de- 
fendant, although  you  may  properly  do  so  if  the  evidence  in  the 
case  convinces  your  minds  beyond  a  reasonable  doubt  of  the 
guilt  of  the  defendant. 

I  also  charge  you  in  this  regard  that  it  is  not  necessary,  in 
order  to  corroborate  an  accomplice,  that  the  crime  charged  be 
proven  independently  of  the  testimony  of  the  husband,  or  that 
the  testimony  of  the  husband  should  be  corroborated  in  every 
particular  in  order  that  it  may  be  said  to  be  corroborated ;  but 
it  is  only  necessary  that  there  should  be  circumstantial  evidence 
or  testimony  of  some  witness  other  than  the  husband  tending  to 
connect  the  defendant  with  the  crime  charged  and  to  prove  some 
of  the  material  facts  testified  to  by  the  husband.  And  you  may 
find  the  husband's  testimony  to  be  corroborated  if  you  find  facts 
and  circumstances  independent  of  his  testimony  tending  to  sug- 
gest the  probability  that  the  defendant  committed  the  crime 
charged  in  the  indictment.1 
i  Request  by  State  given   in   State   v.  Tippie,  supra,     Evans  J. 

Sec.  1463.     Belief  that  uterus  contained  dead  foetus. 

The  defendant's  belief  that  the  uterus  of  Mrs.  E.,  the  deceased 
woman,  contained  a  dead  foetus  is  not  sufficient  of  itself  to 
justify  the  procuring  of  a  miscarriage  under  the  laws  of  this 
state;  neither  will  this  belief  exonerate  the  defendant  from 
prosecution  under  our  statutes  for  causing  the  death  of  a  woman 
in  consequence  of  a  drug  administered  with  the  intent  to  procure 
a  miscarriage.1 
i  Request  by  State  given  in  State   v.  Tippie,   supra. 

Sec.  1464.     Presumption  of  innocence  continues  until  verdict. 

You  are  instructed  by  the  court  that  where  a  person  is  charged 
with  crime  the  law  presumes  the  accused  to  be  innocent ;  and  this 


ABORTION.  1109 

presumption  of  innocence  does  not  cease  when  the  jury  retires. 
This  presumption  of  innocence  accompanies  the  accused  through 
the  trial  down  to  and  until  the  jury  reach  a  verdict,  and  it  is 
the  duty  of  the  jury,  if  possible,  to  reconcile  the  evidence  with 
this  presumption.1 
i  State  v.  Tippie,  supra. 

Sec.  1465.  Unwise  to  convict  on  uncorroborated  testimony  of 
accomplice. 
The  witness,  A.  H.  E.,  admitted  in  his  testimony  that  he  was 
an  accomplice  in  the  crime  charged  in  the  indictment,  and  the 
court  says  to  you  that  it  would  be  unsafe  and  unwise  for  the 
jury  to  convict  the  defendant  upon  his  uncorroborated  testi- 
mony.1 

i  Request  by  defendant  given   in  State    r.   Tippie.  supra,  and   affirmed,   88 
O.  S.  — . 

Sec.  1466.     Reasonable  doubt  as  to  intent — Reasonable  proba- 
bility of  innocence  creates  reasonable  doubt. 

Before  the  jury  would  be  warranted  in  returning  ;i  verdict 
of  guilty,  you  must  find  from  the  evidence  beyond  a  reasonable 
doubt  that  the  defendant  intended  to  procure  the  miscarriage 
of  one  N.  E.  at  or  about  the  time  alleged,  and  by  the  means 
alleged  in  the  indictment. 

Tt  is  not  necessary  that  the  jury  should  be  satisfied  that  the 
defendant  is  innocent  to  justify  a  verdict  of  not  guilty,  but  it 
is  necessary  that  all  the  jurors  should  be  convinced  beyond  ;i 
reasonable  doubt  that  he  is  guilty  before  a  verdict  can  lawfully 
be  rendered  against  him. 

If  there  is  any  reasonable  probability  of  the  innocence  of  the 
defendant,  then  a  reasonable  doubt  of  his  guilt  exists,  and  the 
jury  must  find  a  verdict  of  not  guilty.1 

i  Request   by   defendant    given    in   State    r.   Tippie,  supra. 


CHAPTER   LXVI. 
AGENCY. 


1467.  What  constitutes  agent.  1470.  No  ratification  without  knowl- 

1468.  Special  or  general  agent.  edge  of  facts. 

1469.  Principal     estopped    to    deny  1471.  Ratification  with  knowledge — 

agency,       when      person  Cannot  disavow  part, 

placed    in   position    from  1472.  Right  to  recover  where  double 

which    another    is    justi-  agency    known    to    prin- 

fied  from  usage  and  na-  cipal. 
ture    of   business    in    be- 
lieving agent  authorized. 

Sec.  1467.     What  constitutes  an  agent. 

You  are  instructed  that  an  agent  is  one  who  acts  for  another 
by  the  authority  of  the  principal,  one  who  is  entrusted  with  the 
concerns  of  another,  and  whatever  he  does  as  such  agent,  within 
the  scope  of  the  authority  conferred  on  him  by  the  principal, 
is  as  much  the  act  of  the  principal  as  if  done  by  the  principal 
himself.     In  such  case  his  acts  are  the  acts  of  the  principal. 

Sec.  1468.     Special  or  general  agent. 

A  person  may  act  for  himself,  or  he  may  act  through  another. 
If  he  acts  through  another,  that  other  is  called  the  agent,  and 
he  is  called  the  principal.  The  power  of  the  agent  may  be 
general  or  it  may  be  special.  It  is  general  when  the  agent  is 
empowered  to  do  a  particular  thing  or  many  things  in  any  way 
necessary  or  proper  to  accomplish  the  end.  It  is  special  when 
the  agent  is  empowered  to  do  a  particular  thing  or  many  things 
in  a  limited  way.  The  jury  must  determine  the  character  of 
the  agency  from  the  testimony.  In  general,  the  principal  is 
bound  if  the  agent  exceed  his  authority,  and  the  other  party 
did  not  know  it.  If  special,  the  agent  must  follow  his  instruc- 
tions, else  the  principal  will  not  be  bound.1 

iA  correct  charge  given  in  a  proper  case;  but  held  no  occasion  for  giving 
it,  in  McGee  v.  Wells,  57  S.  C.  280;  76  Am.  St.  567. 

1110 


AGENCY.  1111 

Sec.  1469.     Principal  estopped  to  deny  agency,  when  person 
placed  in  position  from  which  another  is  jus- 
tified from  usage  and  nature  of  business  in 
believing  agent  authorized. 
The  jury  is  instructed  that  where  a  principal  has  by  his  vol- 
untary act  placed  an  agent  in  such  situation  that  a  person  of 
ordinary   prudence,    conversant   with   business   usages    and  the 
nature  of  the  particular  business,  is  justified  in  assuming  that 
such  agent  is  authorized  to  perform  on  behalf  of  his  principal 
a  particular  act,  such  particular  act  having  been  performed,  the 
principal  is  estopped  as  against  such  innocent  third  person  from 
denying  the  agent's  authority  to  perform  it. 

It  is  an  obvious  limitation  upon  the  liability  of  the  principal 
that  he  who  deals  with  the  agent  must  deal  in  good  faith,  re- 
specting every  restriction  upon  the  agent's  authority  of  which 
he  may  have  notice.1 
i  General  Cartage  Co.  v.  Cox,  74  0.  S.  284,  294. 

Sec.  1470.     No  ratification  without  knowledge  of  facts. 

The  jury  is  instructed  that  where  a  person  assumes  without 
authority  to  act  as  the  agent  of  another,  the  principal  can  not 
be  bound  by  such  act  at  all  unless  he  ratifies  the  same.  The 
principal  is  not  bound  by  unauthorized  agreements  of  a  special 
agent  by  the  acceptance  of  benefits  derived  therefrom,  unless  he 
ratifies  the  same  with  full  knowledge  of  all  the  terms  and  con- 
ditions.1 Before  a  person  can  be  bound  by  ratification  of  an 
act  done  in  his  behalf,  it  must  appear  that  he  was  informed  of 
all  the  material  facts  in  the  transaction.2 

i  Roberts  v.  Rumley,  f>8  Towa,  301.    See  Am.  Ann.  Cases  1913,  E.  Note,  1115. 
2  Kerr  v.  Sharp,  83  111.   199. 

Sec.  1471.  Ratification  with  knowledge— Cannot  disavow  part. 
The  prior  appointment  of,  or  the  subsequent  ratification  of  the 
acts  of  a  third  person  as  agent,  will  confirm  and  establish  the 
authority  of  the  agent,  and  generally,  if  the  party  receives  and 
holds  the  proceeds  of  the  beneficial  results  of  the  contract,  with 


1112  INSTRUCTIONS  TO   JURY. 

knowledge   of  the  material   facts,  he   will  not  be   permitted  to 

deny  the  authority  of  the  agent,  for  it  is  in  fact  the  ratification 

of  the  contract.     The  principal  can  not  in  general  adopt  a  part 

and  disavow  a  part  of  the  contract  of  the  person  who  proposes 

to  be   his  agent.     This   should  be   received,   however,  with   the 

qualification   that   the   principal    must   have   knowledge   of   the 

material  facts  to  bind  him.1 

i  Voris,  J.,  in  Valley  Railroad  Company  v.  The  Thomas  Lumber  and 
Building  Co.,  Summit  Co.  Com.  PI.  Affirmed  by  Circuit  Court. 
Ratification  is  a  question  of  fact  for  the  jury.  Middleton  v.  R.  R. 
Co.,  02  Mo.  579;  Fisher  v.  Stephens,  16  111.  397.  A  principal  can  not 
adopt  part  without  adopting  the  whole.  Winpenny  v.  French.  18 
0.  S.  469;  34  0.  S.  450.  Full  knowledge  is  necessary.  Wilson  v. 
Forder,  20  0.  S.  89.  97.  It  will  not  be  implied  from  acts  done  in 
ignorance.     Grant  v.  Ludlow.  8  0.  S.   1.  19;   24  O.  S.  67. 

Sec.  1472.     Right  to  recover  where  double  agency  known  to 
principal. 

If  the  defendant  employed  the  plaintiff  to  act  as  his  agent  in 
the  exchange  of  property  mentioned  in  the  petition  for  a  farm 
owned  by  another,  or  employed  him  to  aid  and  assist  in  such 
exchange,  and  agreed  to  pay  him  a  certain  per  cent,  as  commis- 
sion on  the  property,  and  at  the  same  time  knew  that  the  plaintiff 
was  the  agent  of  the  owner  of  the  farm  which  defendant  was 
seeking  to  obtain,  and  that  plaintiff  w^as  acting  as  the  agent  of 
said  owner,  and  the  defendant  assented  thereto  and  agreed  to 
pay  the  commission,  and  the  owner  of  the  farm  knew  that  plain- 
tiff was  acting  as  agent  of  the  defendant  in  the  exchange,  and 
assented  thereto,  agreeing  to  pay  the  plaintiff'  the  commission 
stipulated  in  the  written  contract  of  agency,  the  plaintiff  is 
entitled  to  recover.1 
i  Bell  v.  McConnell,  o7  O.  S.  396. 


CHAPTER    LXVII. 
AIDER  AND  ABETTOR. 

SEC.  SEC. 

147'!.  Must  be   conspiracy   or   overt  1473.  Aider  and  abettor — Charge  in 
act.  case  of  homicide. 

J  474.  One    present    without    knowl- 
edge of  conspiracy. 

Sec.  1473.     Must  be  conspiracy  or  overt  act. 

In  the  absence  of  a  conspiracy,  one  who  is  present  when  a 
homicide  is  committed  by  another  upon  a  sudden  quarrel,  or  in 
the  heat  of  passion,  is  not  guilty  of  aiding  and  abetting  the 
homicide,  although  he  may  have  become  involved  in  an  inde- 
pendent fight  with  others  of  the  party  of  the  deceased,  unless 
he  does  some  overt  act  with  a  view  to  produce  that  result,  or 
purposely  incites  or  encourages  the  principal  to  do  the  act;  and 
so  in  this  case,  if  yon  find  the  defendant  on  trial,  although 
present  at  the  time  of  the  shooting,  knew  nothing  of  his  son  H. 
having  a  revolver,  or  intending  to  shoot,  and  took  no  part  in  the 
killing,  and  did  no  overt  act  to  produce  that  result,  then  he 
is  in  no  way  responsible,  and  must  be  acquitted,  unless  you  find 
from  the  evidence,  and  beyond  a  reasonable  doubt,  that  the  shot 
was  fired  by  IT.  in  pursuance  of  a  conspiracy  previously  formed 
by  them.1 

iWoolweaver   o.  State.  50  O.  S.  277.  287. 

Sec.  1474.     One  present  v/ithout  knowledge  of  conspiracy. 

"It  is  not  sufficient  to  establish  the  guilt  of  a.  defendant  in 
aiding  and  abetting  the  principal  in  the  commission  of  the  homi- 
cide charged  in  the  indictment,  that  he  was  presenl  with  others 
where  the  alleged  killing  was  done,  for  he  may  have  been  pre- 
sent not  knowing  that  any  crime   was  about  to  be  committed; 

1113 


1114  INSTRUCTIONS  TO  JURY. 

and  if  he  was  not  there  in  furtherance  of  an  understanding 
or  common  purpose  to  commit  some  unlawful  act,  and  was  in 
company  with  the  principal  without  knowledge  that  the  com- 
mission of  an  offense  was  contemplated  by  the  principal  or  any 
of  his  co-defendants,  he  is  not  responsible  for  the  acts  of  the 
principal  or  his  other  co-defendants  if  he,  the  defendant,  did 
not  participate  in  the  commission  of  the  crime  charged."1 
iGoins  v.  State,  46  0.  S.  457. 

Sec.  1475.     Aider  and  Abettor — Charge  in  case  of  homicide. 

It  is  one  of  the  fundamental,  as  it  is  one  of  the  most  familiar, 
principles  of  criminal  law,  that  when  a  criminal  act  is  done 
by  one  of  two  accused  persons,  as,  for  instance,  shooting  and 
taking  the  life  of  a  third  person,  and  the  other  accused  per- 
son is  present  when  the  criminal  act  is  done,  and  by  words,  acts 
or  gestures,  aids,  assists  and  encourages  the  other  to  do  the 
criminal  act,  then  both  are  responsible  and  guilty  as  principals; 
and  that  is  true,  notwithstanding  the  fact  may  be  that  a  pre- 
vious conspiracy  had  not,  by  them,  been  formed  to  kill  the  per- 
son who  was  then  killed.1 

And  it  is  also  true,  notwithstanding  the  two  accused  persons 
lawfully  came  together  at  the  time  and  place  of  the  shooting. 
The  fact  that  they  lawfully  came  together,  then  and  there, 
could  not,  in  law,  diminish  or  mitigate  the  criminality  of  the 
shooting,  if  it  was  criminal,  which  was  afterwards  done.  Ac- 
cording to  old  definitions,  he  who  actually  commits  or  takes 
part  in  the  actual  commission  of  a  crime,  is  a  principal  of  the 
first  degree,  and  he  who  aids  or  abets  the  actual  commission 
of  the  crime  is  a  principal  of  the  second  degree.  Since  our 
statute,  which  places  both  of  these  classes  in  the  same  category, 
was  passed,  the  old  definitions  are  of  no  practical  use  except  to 
explain  the  meaning  of  terms  used.  The  reason  of  this  law  mak- 
ing both  of  the  persons  named  guilty,  is  that  the  will  of  the 
accused  person,  who  did  not  do  the  shooting,  contributed  to  the 
result  produced  by  the  shooting,  the  death  of  the  person  shot. 
His  guilt,  therefore,  is  the  same  as  if  he  himself  did  the  criminal 


AIDER   AND    ABETTOR.  1115 

act.  The  revolver,  or  pistol,  or  gun  out  of  which  the  fatal  shot 
was  fired,  was  the  pistol,  or  revolver,  or  gun  of  both  of  them, 
although  only  one  of  them  owned,  held  and  directed  it  when 
it  was  fired. 

To  render  the  accused  person  liable  who  simply  gives  aid  and 
encouragement,  but  did  not  do  the  criminal  act,  responsible  and 
guilty,  it  is  not  necessary  that  he  should  have  been  strictly, 
actually,  and  immediately  present  when  and  where  the  shoot- 
ing was  done,  in  the  sense  that  he  was  an  eye  or  ear  witness 
to  what  passed.2 

If  he  was  sufficiently  near  to  give  the  aid  and  encouragement 
and  help  to  the  other,  that  was  enough.  His  mere  presence, 
however,  was  not  sufficient  to  make  him  an  accomplice.  He 
must  have  done  something  more.  He  must  have  incited,  or 
assisted,  or  encouraged  the  other  person  to  do  the  criminal  act 
in  one  of  the  ways  mentioned.  In  this  instruction  the  court  has 
only  elaborated  and  expounded  to  you  a  statute  of  the  State  of 
Ohio,  which  declared:  "Whoever  aids,  or  abets,  or  procures 
another  to  commit  any  offense,  may  be  prosecuted  and  punished 
as  if  he  wrere  a  principal  offender."  3 

i  To  constitute  one  who  is  present,  and  who  becomes  involved  in  a  fight, 
which  results  in  death  of  the  antagonist,  an  aider  and  abettor,  it 
should  appear  either  that  there  was  a  prior  conspiracy,  or  that  he 
purposely  incited  or  encouraged  the  slayer,  or  did  some  overt  act 
himself,  unth  intent  to  cause  the  death  of  his  antagonist.  Wool- 
weaver  v.  State,  50  O.  S.  277.  The  charge  as  we  have  given,  might 
be  modified  to  comply  with  the  decision  just  quoted;  although  the 
remainder  is  a  compliance  with  the  rule. 

2  Warden  v.  State,  24  O.  S.   143. 

s  State  v.  Elliot,  Franklin  County,  Pugh,  J. 


CHAPTER    LXVIII. 
ALIBI. 

SEC.  -SEC- 

1476.  Alibi  defined— Proof  thereof.  1477.     Character  of  proof. 

Sec.  1476.     Alibi  defined— Proof  thereof. 

The  defendant,  under  the  plea  of  not  guilty,  and  as  an  in- 
dependent defense,  says  that  he  was  at  another  place,  and  there- 
fore could  not  have  taken  the  property  named  in  the  indictment. 
This  is  what  is  termed  in  law  an  alibi.  Alibi  is  a  Latin  word 
signifying  elsewhere,  and  in  law  means  a  defense  interposed 
by  the  defendant  by  which  he  attempts  to  prove  that  at  the 
time  of  the  commission  of  the  offense  he  was  at  some  other 
place  than  that  where  it  was  committed.  An  alibi  is  a  legiti- 
mate and  proper  defense  to  make,  and  if  satisfactorily  made 
is  conclusive.  It  is  obviously  essential  to  the  satisfactory  proof 
of  an  alibi,  that  it  should  cover  the  whole  of  the  time  of  the 
transaction  in  question,  or  so  much  of  it  as  to  render  it  im- 
possible that  the  prisoner  could  have  committed  the  act.  If 
the  defendant  was  not  at  the  place  of  the  commission  of  the 
alleged  crime,  as  a  matter  of  course  he  could  not  have  com- 
mitted the  crime  himself  by  his  own  hands.  Whether  or  not 
the  defendant  has  proved  an  alibi  is  a  question  of  fact  for  the 
jury  to  determine ;  and  in  doing  so  you  should  look  to  and 
consider  all  the  testimony  upon  that  subject  and  which  in 
any  way  tends  to  prove  or  disprove  it. 

Sec.  1477.     Character  of  proof. 

It  is  not  required  that  the  defendant  prove  this  defense  be- 
yond a  reasonable  doubt,  nor  by  a  preponderance  of  evidence, 
to  entitle  him  to  an  acquittal;  it  is  sufficient  if  all  the  evidence 
raises  a  reasonable  doubt  of  his  presence  at  the  time  and  place 
1116 


AUBI.  HIT 

of  the  commission  of  the  crime  charged;  or  in  other  words, 
you  must  determine  from  the  whole  evidence  whether  it  was 
shown  beyond  a  reasonable  doubt  that  the  defendant  com- 
mitted the  crime  with  which  he  is  charged.1 

"But  the  evidence  must  cover  all  the  time  during  which 
the  crime  was  committed.  You  should  be  fully  satisfied  by 
a  preponderance  of  the  evidence  that  these  defendants  were 
at  H.'s,  the  place  where  they  claim  to  have  been  at  the  time 
the  crime  was  committed,  all  the  time  while  the  crime  Mas 
being  committed,  or  at  such  time  that  they  could  not,  with 
any  ordinary  exertion,  have  reached  the  place  where  the  crime 
was  committed. '  '2 

i  Walters  v.  State,  39  0.  S.  21.5:  State  r.  Harden.  4G  la.  623:  State  v. 
Jaynes,  78  N.  C.  504.  Failure  to  prove  an  alibi  affords  no  pre- 
sumption of  defendant's  presence.     Toier   o.  State,   16  0.  S.  5S3. 

-Plate  v.  Hardin,  46  la.  628.  See  instructions  in  State  r.  Waterman,  ] 
New  543. 


CHAPTER    LXIX. 
ALIENATION  OF  AFFECTIONS. 


SEC. 

1478.  Consortium,  right  of. 

1479.  Malice    as    an    ingredient    of 

the  wrong. 

1480.  Marital   right  gives  exclusive 

right  of  intercourse. 

1481.  Acts    of    defendant    must    be 

malicious. 

1482.  Conduct  of  husband. 

1483.  Acts  of   parents — Rights   and 

liabilities. 

1484.  Alienation    by    adulterous    re- 

lations with  wife. 

1.  Marriage — Rights      result- 

ing therefrom. 

2.  Adultery     with    wife — Es- 

sentials to  recovery,  and 
proof. 

3.  Damages. 

1485.  Alienation  of  affections. 

1.  Limitation  of  action  for — 
Admission  of  acts  prior 
to. 


2.  Husband     voluntarily    be- 

stowing affections  on  an- 
other— Must  be  wrong- 
ful act  of  defendant. 

3.  Relationship     of      husband 

and  wife  prior  to  act. 

4.  Malice. 

5.  Abandonment   of     husband 

not  prerequisite  of  suit 
by  wife. 

6.  Measure  of  damages. 

1486.  Claim     of     mistreatment     of 

wife    by    husband. 

1487.  Connivance   of,   or  encourage- 

ment by,  plaintiff  of 
alienation — Or  his  own 
misconduct  bars  recovery. 

1488.  Preponderance      of      evidence 

only,  essential. 

1489.  Burden      and      character      of 

proof  of  adultery. 

1490.  Measure  of  damages. 


Sec.  1478.     Consortium — Right  of. 

The  action  for  alienation  of  affections  is  not  in  any  sense 
for  loss  of  support,  or  loss  of  earning  capacity,  but  is  wholly 
an  action  for  damages  for  loss  of  consortium. 

Consortium  is  defined  to  be,  the  conjugal  fellowship  of  hus- 
band and  wife,  and  the  right  of  each  to  the  company,  co-opera- 
tion and  aid  of  the  other  in  every  conjugal  relation. 

This  right  is  invaded  whenever  a  third  person  through 
machination,  enticement,  seduction,  or  through  other  wrong- 
ful, intentional  and  malicious  interference  with  the  marriage 
1118 


ALIENATION    OF   AFFECTIONS.  1119 

relation  deprives  the  husband  or  wife  of  the  consortium  of  the 
other.1 

Whatever  invades  the  hallowed  precincts  of  a  home,  and, 
without  justifiable  cause,  by  any  means  whatsoever  severs  the 
sacred  tie  that  binds  husband  and  wife,  alienating  the  affec- 
tions of  either,  and  depriving  either  of  the  aid,  comfort  and 
happiness  of  a  loyal  union  between  them  is  liable  in  civil  dam- 
ages.2 

i  Flandermeyer  v.  Cooper,  85  0.  S.  327. 

zBoland  v.  Stanley,  88  Ark.  562,  115  S.  W.  163,  129  Am.  St.  114. 

Sec.  1479.     Malice  as  an  ingredient  of  the  wrong. 

Though  it  is  essential  that  the  act  of  the  defendant  shall 
have  been  malicious  in  order  to  give  rise  to  a  cause  of  action, 
still  this  does  not  require  that  he  shall  have  been  actuated 
by  ill  will  or  actual  malice  towards  the  injured  party;  nor 
is  it  necessary  that  the  act  of  defendant  shall  have  been  prompted 
by  a  spiteful,  malignant  or  revengeful  disposition.  It  is  suffi- 
cient if  the  acts  be  wrongful,  unlawful  and  intentional  and 
the  natural  and  probable  result  of  the  act  to  accomplish  the 
injury  of  the  loss  of  consortium,  or  alienation  of  affections.1 
i  Flandermeyer  v.  Cooper,  85  O.  S.  327 ;  Boland  v.  Stanley,  88  Ark.  562 ; 
115  S.  W.   163;    129  Am.  St.   114. 

Sec.  1480.     Marital  right  gives  exclusive  right  of  intercourse. 

The  right  which  is  involved  in  this  case  is  the  marital  right. 
When  a  man  marries  a  woman  he  has  certain  rights  to  her 
comfort  and  to  her  society,  and  to  the  exclusive  right  of  hav- 
ing sexual  intercourse  with  her.  And  anyone  who  interferes 
with  that  right  by  committing  any  act  knowingly  and  inten- 
tionally, commits  an  act  which  the  law  condemns.1 
i  Dent  v.  Za.ng,  Franklin  Co.  Com.  PI.,  Kinkead,  J. 

Sec.  1481.    Act  or  acts  of  defendant  must  be  malicious. 

It  has  been  held  in  this  state  that  in  order  to  warrant  a 
recovery  in  this  kind  of  a  case  that  the  act  or  acts  on  the  part 


1120  INSTRUCTIONS  TO  JURY. 

of  one  charged  with  alienating  the  wife's  affections,  must  he 
maliciously  done.  If  a  man  intentionally  has  sexual  intercourse 
with  another  man's  wife,  without  the  consent  of  the  husband, 
he  commits  a  wrongful  act  and  he  knows  it.  And  the  law 
then  presumes  from  that  wrongful  act  that  he  did  it  with  malice. 
That  is,  the  state  of  his  mind  is  such  that  he  acts  without  any 
regard  whatever  for  the  rights  of  others,  and  that  is  what  we 
mean  by  malice  in  this  kind  of  a  case. 

So  if  the  jury  should  find  from  the  evidence,  and  by  a  pre- 
ponderance thereof,  that  the  defendant  in  this  case  did  com- 
mit the  sexual  act,  and  if  you  further  find  that  by  reason  of 
the  commission  of  that  act  and  for  no  other  reason  at  all,  the 
plaintiff  wras  deprived  of  the  comfort  and  society,  and  of  the 
rights  that  follow  and  attach  to  the  marital  relation,  then,  of 
course,  you  should  find  for  the  plaintiff  and  against  the  de- 
fendant.1 

i  Dent  v.  Zang.  ante,  sec.  1480.  The  alienation  must  be  the  result  of 
wrongful  influences  knowingly  exerted  by  defendant  with  that  end 
in  view.  Smith  v.  Lammick,  9  0.  L.  R.  87:  56  Bull.  220;  Flan- 
dermeyer  v.  Cooper,  85  O.  S.  327. 

Sec.  1482.     Conduct  of  husband. 

Some  evidence  has  been  offered  here  which  tends  to  bear 
upon  the  conduct  of  the  plaintiff  as  a  husband.  I  will  say 
to  you,  gentlemen,  that  the  conduct  of  the  plaintiff  in  a  case 
like  this  is  a  pertinent  issue,  and  one  which  you  may  consider 
when  there  is  any  evidence  which  is  offered  that  warrants  your 
consideration  thereof. 

To  hold  a  defendant  in  a  case  like  this,  the  jury  must  arrive 
at  the  conclusion  that  it  was  the  wrongful  conduct  of  the  de- 
fendant which  resulted  in  the  loss  of  consortium,  or  the  loss 
of  the  society  of  his  wife,  and  if  it  should  appear  that  the  con- 
duct of  a  husband  w^as  of  such  a  character  and  nature  that  it 
was  the  cause  of  the  loss  of  his  wife's  society  and  that  the 
other  acts  complained  of  by  him  as  against  a  defendant  charged 
with  criminal  conversation  were  not  the  cause,  then,  of  course, 
there  could  not  be  any  recovery. 


ALIENATION    OF    AFFECTIONS.  1121 

But  even  under  such  circumstances  where  there  may  be  some 
question  raised  as  to  whether  or  not  both  of  these  causes  oper- 
ated in  the  loss  to  the  plaintiff  of  his  wife's  society,  and  if 
the  jury  should  believe  that  the  conduct  of  one  charged  with 
criminal  conversation  with  his  wife  did  operate,  whether  to 
any  degree,  or  entirely  so.  or  was  the  sole  reason,  the  plaintiff 
would  be  entitled  to  recover  under  such  circumstances  even 
though  his  own  conduct  may  have  been  in  a  measure  partially 
the  cause  of  the  loss  to  him  of  his  wife's  society.1 
1  Dent  v.  Zaun,  supra. 

Sec.  1483.     Acts  of  parents — Rights  and  liabilities. 

The  jury  is  instructed  that  the  parents  have  the  right  to 
advise  their  son  (or  daughter)  to  leave  his  wife  (or  the  daughter 
to  leave  her  husband)  if  such  advice  is  given  with  the  proper 
motives  and  in  good  faith,  and  the  same  is  founded  upon  con- 
ditions and  circumstances  honestly  believed  by  them  to  be  exist- 
ing, and  believing  that  the  son's  (or  daughter's)  best  welfare 
will  be  furthered  by  such  action.  There  is  a  natural  presump- 
tion springing  from  the  ties  of  blood  that  the  acts  of  parents 
in  so  advising  their  child  are  in  good  faith  and  for  the  pur- 
pose of  promoting  the  child's  welfare  unless  the  contrary  is 
established  by  the  evidence. 

In  order  to  recover  for  loss  of  consortium  against  the  parents 
if  is  not  only  necessary  to  establish  the  fact  that  the  parents 
caused  the  injury,  but  it  must  be  made  to  appear  also  that  in 
so  doing  they  acted  maliciously,  that  is,  in  bad  faith,  not  with 
a   view-  of  promoting   the  son's    (or  daughter's)    welfare. 

If  parents,  having  knowledge  of  a  child's  actual  condition 
and  situation  in  respect  to  the  marital  relation,  or  if  they  have 
such  knowledge  as  to  cause  them  to  be  reasonably  apprehensive 
of  the  needs  and  welfare  of  their  child  and  act  in  the  honest 
belief  that  a  course  taken  or  advised  is  for  the  best  welfare 
of  "uch  child,  their  acts  cannot  be  deemed  malicious,  although 
such  conduct  in  fact  may  appear  to  have  been  detrimental 
to  tiie  child's  interest. 


1122  INSTRUCTIONS  TO  JURY. 

What  a.  father  or  mother  may  do  in  respect  to  their  married 
child  so  far  as  giving  rise  or  inference  to  bad  motive  or  intent 
is  to  be  differently  regarded  than  when  the  same  thing  may  be 
done  by  a  stranger.  Parents  may,  to  some  extent,  watch  over 
the  welfare  of  a  married  child;  they  may  advise  him  (or,  her) 
under  some  circumstances,  contrary  to  the  inclination  of  the 
husband,  (or,  wife)  and  even  to  the  extent  of  advising  de^ 
sertion,  and  may  act  upon  the  mind  of  the  child  successfully 
to  that  end,  if  with  proper  motive  and  upon  reasonably  jus- 
tifiable grounds. 

The  jury  is  instructed  that  in  determining  whether  parents 
have  acted  improperly  and  in  excess  of  their  parental  right, 
and  are  liable  for  wrongfully  influencing  their  son  (or,  daughter) 
to  leave  his  wife,  (or,  husband)  the  test  is,  whether  in  what 
they  said  or  did,  they  were  in  fact,  actuated  with  a  reason- 
able parental  regard  for  their  child,  and  under  circumstances 
reasonably  and  fairly  warranting  them  in  being  reasonably 
apprehensive  of  the  child's  welfare;  or  whether  they  were  act- 
uated by  unreasonable  ill  will  towards  the  wife  (or  husband).1 

If  the  jury  finds,  etc. 

Uones  v.  Monson,  137  Wis.  478;  119  N.  W.  179;  129  Am.  St.  1082,  and 
cases  cited;  Oakman  v.  Belden,  94  Me.  280;  80  Am.  St.  396;  Ger-- 
nard  v.  Gernard,  185  Pa.  St.  233;  64  Am.  St.  646;  Brown  v.  Brown, 
124  N.  C.  19,  70  Am.  St.  574. 

Sec.  1484.     Alienation  by  adulterous  relations  with  wife. 

1.  Marriage — Rights  resulting  therefrom. 

2.  Adultery  with  wife — Essentials  to  recovery,  and  proof. 

3.  Damages. 

1.  Marriage — Rights  resulting  therefrom..  Marriage  is  an  in- 
stitution of  society  which  is  founded  in  a  civil  contract  between 
the  parties.  That  contract  and  the  status  resulting  from  it 
imposes  certain  duties  upon  the  contracting  parties  and  confers 
upon  them  certain  valuable  rights.  One  of  these  rights  is  that 
of  exclusive  marital  intercourse  with  each  other. 


ALIENATION   OF   AFFECTIONS.  1123 

Each  is  entitled  to  the  society  and  affection  of  the  other.  The 
rights  of  both  spring  from  the  marriage  contract  and  in  the 
very  nature  of  things  must  be  mutual.  [Flandermeyer  v. 
Cooper,  85  0.  S.  327,  339.] 

2.  Adultery  with  wife — Essentials  to  recovery  and  proof. 
When,  therefore,  a  man  commits  adultery  with  the  wife,  he  has 
trespassed  upon  the  rights  of  the  husband,  and  for  this  wrong 
the  law  affords  the  husband  a  remedy  by  an  action  in  damages. 
To  entitle  the  plaintiff  to  recover,  two  facts  must  lie  proven  by 
a  preponderance  of  the  evidence.  First,  the  fact  of  marriage, 
and,  second,  the  fact  of  adultery  with  the  plaintiff's  wife  by  the 
defendant.  As  to  the  fact  of  marriage,  it  may  be  proven  by 
the  testimony  of  any  person  who  has  personal  knowledge  of 
the  fact  of  marriage.  As  to  the  proof  of  adultery,  the  proof 
need  not  be  that  of  eye  witnesses  to  the  act  of  sexual  inter- 
course, but  may  be  established  by  proof  of  circumstances  suf- 
ficiently strong  to  create  a  preponderance  of  the  evidence  in 
favor  of  the  plaintiff's  charge  that  the  defendant  committed 
adultery  with  his  wife.  In  the  proof  of  any  fact  in  a  civil 
action,  it  is  sufficient  if  the  evidence,  whether  direct  or  circum- 
stantial, is  sufficient  to  create  a  preponderance  of  the  evidence 
in  favor  of  the  existence  of  the  fact  asserted,  and  when  there 
is  such  a  preponderance  of  the  evidence  in  favor  of  the  existence 
of  the  fact  or  matter  asserted,  that  fact  or  matter  is  to  be  con- 
sidered as  proven. 

To  warrant  a  finding  that  the  defendant  committed  adultery 
with  the  plaintiff's  wife  upon  circumstantial  evidence,  the  plain- 
tiff must  show  a  disposition  on  the  part  of  the  defendant  and  the 
wife  of  the  plaintiff  to  have  illicit  intercourse  and  an  oppor- 
tunity to  gratify  that  mutual  inclination  or  disposition.  It  is 
not  enough  to  show  such  a  disposition  on  the  part  of  the  de- 
fendant alone  or  on  the  part  of  the  plaintiff's  wife  alone,  but 
such  a  disposition  on  the  part  of  both  of  them,  and,  in  addition, 
such  a  state  of  facts  as  would  afford  an  opportunity  to  gratify 
their  desires.  This  is  a  question  of  fact  and  must  be  determined 
by  you  from  all  the  evidence  before  you;  and  if  you  find  that 


1124  INSTRUCTIONS  TO  JURY. 

the  defendant  did  have  sexual  intercourse  with  the  plaintiff's 
wife,  without  the  consent  of  the  plaintiff,  and  without  any  con- 
nivance on  plaintiff's  part,  then  plaintiff  is  entitled  to  recover 
a  verdict  at  your  hands. 

The  gist  of  the  offense  here  charged  is  the  defilement  of  the 
marriage  bed  by  the  defendant.  If  it  is  proven  by  a  prepon- 
derance of  the  evidence  that  A.  P.  was,  at  the  dates  complained 
of,  the  wife  of  the  plaintiff,  and  that  the  defendant,  without 
plaintiff's  consent,  committed  adultery  with  her,  then  the  plain- 
tiff is  entitled  to  recover. 

This  is  true,  even  though  you  may  find  that  she  may  have 
separated  from  him  because  of  his  own  misconduct'  and  not 
because  of  adulterous  intercourse  with  the  defendant.  This  re- 
sults from  the  legal  principle  which  I  have  already  stated  to 
you,  to- wit,  that  such  adulterous  intercourse  with  a  man's  wife 
without  his  consent  is  an  invasion  of  his  legal  rights  and  entitles 
him  to  recover  damages,  even  though  no  separation  may  result 
on  account  of  such  wrongful  conduct.  If  it  results  in  separation 
and  the  loss  of  the  comfort  and  society  of  the  wife,  this  is,  of 
course,  a  matter  of  aggravation  to  be  considered  upon  the  ques- 
tion of  the  amount  of  damages  to  be  allowed.  But  the  right  to 
recover  does  not  depend  upon  its  being  proven  that  the  sepa- 
ration between  the  husband  and  wife  was  in  fact  due  to  the 
adulterous  intercourse. 

In  an  action  of  this  kind,  misconduct  on  the  part  of  the 
husband  will  not  bar  his  right  of  action,  nor  will  the  fact  that 
the  wife  has  obtained  a  divorce  from  her  husband  on  account 
of  his  misconduct  bar  his  right  of  action,  but  the  conduct  of 
the  plaintiff  as  a  husband  is  a  material  matter  to  be  considered, 
and  it  is  competent  for  the  defendant  in  mitigation  of  damages 
to  prove  misconduct  of  the  husband  in  his  marital  relation,  and 
breaches  of  his  marital  obligations.  Neither  will  the  fact  that 
the  husband  may  have  lived  with  his  wife  after  he  had  knowl- 
edge of  her  misconduct  with  the  defendant,  if  you  find  there 
was  misconduct  in  the  respects  complained  of,  between  the  de- 
fendant and  the  plaintiff's  wife,  bar  his  right  of  action.    While 


ALIENATION   OF    AFFECTIONS.  1125 

that  might  show  that  he  had  forgiven  her,  it  would  not  condone 
the  offense  of  the  defendant.  But  if  you  find  that  defendant 
did  commit,  adultery  with  the  plaintiff's  wife  and  that  plaintiff 
after  he  had  knowledge  of  that  fact  continued  to  live  with  her 
for  some  time  as  his  wife,  that  fact  may  also  be  considered  by 
you  in  the  mitigation  of  damages.  But  you  are  to  remember 
that  there  can  be  no  recovery  in  this  case  against  the  defendant 
in  any  amount  unless  you  find  that  the  charge  made  against  the 
defendant  that  he  committed  adultery  with  plaintiff's  wife  is 
proven  by  a  preponderance  of  the  evidence.  Unless  that  is 
proven  the  plaintiff  has  failed  to  make  out  his  case  against  the 
defendant  and  the  defendant  will  be  entitled  to  a  verdict  at 
your  hands. 

If  you  find  that  the  defendant  did  not  commit  adultery  witli 
the  plaintiff's  wife,  but  that  her  separation  from  him  was  due 
not  to  that  cause,  but   to   the  plaintiff's  own   misconduct,   the 
plaintiff  is  not  entitled  to  recover.     If  the  husband  consents  to 
the  wrongdoing  of  his  wife,  or  connives  at  her  adulterous  inter- 
course, he  can  not  recover.      But  he  is  not  to  be  charged  with 
consent  or  connivance  at  the  wrongdoing  merely  because  he  may 
have  been  negligent  in   respect  to  her  conduct  and  thus  per- 
mitted opportunities  for  wrongdoing  on  her  part  where  he  had 
no  suspicion  of  her  infidelity.     The  mere  fact  that  the  plaintiff 
may  have  had  knowledge   that   his   wife   was   at  times  in    the 
company  of  the  defendant  will  not  defeat  his  right  to  recover 
if  he  had  no  suspicion  of  wrongdoing  between  the  defendant  and 
his  wife.     Nor  will  the  licentious  conduct  of  the  plaintiff,  if  you 
find  he  was  guilty  of  such  misconduct,  amount  to  a  consent  that 
she  might  conduct  herself  in  the  same  way,  but  such  misconduct 
on  his  part   is  a   material  matter  to  be  considered,  as   1  have 
already  said,  upon  the  amount  of  damages  to   be  allowed,   if 
you  find  the  plaintiff  is  entitled  to  recover  damages.     The  fact 
that  another  branch   of  this  court    may  have  decided   that   the 
charge  of  adultery  made  against  the  wife  of  the  plaintiff  was  not, 
sustained,  does  not  bar  the  plaintiff's  right  of  action,  nor  is  it 
competent  evidence  for  the  defendant   in   this  case.      You  must 


1126  INSTRUCTIONS  TO  JURY. 

determine  that  question  upon  the  evidence  before  you,  uninflu- 
enced by  the  finding  of  the  court  in  the  divorce  case.  But  it  is 
competent  for  you  to  consider,  as  I  have  said,  the  evidence 
tending  to  show  misconduct  on  the  part  of  the  plaintiff  in  his 
marital  relations. 

3.  Damages.  If  you  find  that  the  plaintiff  is  entitled  to 
recover  damages,  the  amount  to  be  allowed  rests  in  your  sound 
judgment  and  discretion.  In  such  cases  as  this,  there  is  not  and 
can  not  be  from  the  nature  of  the  case  any  fixed  rule  by  which 
to  measure  compensation  to  the  injured  party.  In  estimating 
the  damages,  you  should  take  into  consideration  the  nature  of 
the  injury  which  consists  in  the  dishonor  of  his  marriage  bed. 
If  the  defendant  committed  adultery  with  the  plaintiff's  wife, 
the  plaintiff  will  be  entitled  to  recover  damages  on  account  of 
the  mental  anguish  suffered  and  the  wound  to  his  feelings  and 
pride,  resulting  from  the  wrongful  conduct  of  the  defendant. 
And  if  this  resulted  in  the  loss  to  him  of  the  comfort  and  society 
and  aid  of  his  wife  in  his  domestic  affairs,  this  should  also  be 
considered  by  you  in  estimating  the  damages. 

In  such  a  case  as  this  the  jury  have  a  right  to  give  what  is 
called  punitive  or  exemplary  damages.  That  is,  damages  by 
way  of  punishment  of  the  defendant  for  his  conduct  and  which 
may  be  an  example  to  deter  others  from  the  commission  of  like 
offenses.  The  damages  should  not  be,  however,  excessive,  that  is, 
they  should  not  be  so  great  as  to  be  beyond  all  reasonable  measure 
of  such  damages,  but  in  no  case  can  you  allow  more  than  the 
plaintiff  has  asked  in  his  petition. 

If  you  find  that  the  plaintiff  has  failed  to  prove  by  a  prepon- 
derance of  the  evidence  that  the  defendant  committed  adultery 
with  his  wife,  then  that  will  be  an  end  of  the  case,  and  your 
verdict  should  be  for  the  defendant.1 
i  Polzer  v.  Lang,  Com.  Pleas  Court,  Franklin  Co..  O.,  Bigger,  J. 

Sec.  1485.     Alienation  of  Affections. 

1.  Limitation  of  action  for — Admission  of  acts  prior  to. 

2.  Husband  voluntarily  bt  stowing  affections  on  another — 

Must  be  wrongful  act  of  defendant. 


ALIENATION   OF   AFFECTIONS.  1127 

3.  Relationship  of  husband  and  wift   prior  to  act. 
■i.  Malice. 

5.  Abandonnn  nt  of  husband  not  pn  r<  quisite  of  suit  by  wife. 

6.  Measure  of  damages. 

1.  Limitation  of  action-  for—Admission  of  acts  prior  to.  As 
you  will  observe,  the  defendant  pleads  the  statute  of  limitations. 
Under  the  statute  the  right  of  the  plaintiff  to  recover  for  the 
alleged  wrongful  actions  of  the  defendant  is  limited  to  a  period 
of  four  years  prior  to  the  commencement  of  this  suit ;  that  is, 
it  is  only  for  those  wrongful  acts  on  the  part  of  the  defendant, 
if  such  are  proven,  which  occurred  within  a  period  of  four  years 
prior  to  the  commencement  of  this  action  and  their  effects  upon 
plaintiffs  husband  in  alienating  his  love  and  affection  from  the 
plaintiff  that  can  be  made  the  basis  of  recovery  of  damages  in 
this  case. 

To  entitle  plaintiff  to  recover,  it  must  appear  from  the  evi- 
dence that  the  wrongful  acts  of  the  defendant  occurring  within 
the  four  years,  if  such  are  proven,  did  result  in  alienating  the 
love  and  affection  of  the  plaintiff's  husband  to  some  extent. 
It  is  not  sufficient  merely  to  prove  that  within  that  time  his  love 
and  affection  for  the  plaintiff  have  been  alienated.  But  it  must 
also  be  proven  by  a  preponderance  of  the  evidence  that  there 
was  a  direct  malicious  interference  on  the  part  of  the  defend- 
ant sufficient  to  cause  alienation  of  his  love  and  affection  to 
some  extent  at  least,  or  to  restrain  that  love  and  affection  from 
his  wife,  and  the  plaintiff  has  the  burden  of  proving  this  in- 
terference. 

It  is  not  essential  to  a  recovery  on  the  part  of  the  plaintiff 
that  you  should  find  that  slip  had  proven  all  of  the  statements 
contained  in  her  amended  petition  of  wrongful  acts,  inducements 
and  blandishments  on  the  part  of  the  defendant,  but  it  must  be 
proven  that  she  maliciously  interfered  between  the  plaintiff  and 
her  husband,  and  that  this  interference  resulted  in  the  alienation 
of  his  love  and  affection  to  some  extent  or  in  restraining  the 
bestowal  of  that  love  and  affection  upon  his  wife. 


1128  INSTRUCTIONS  TO   JURY. 

Proof  has  been  admitted  tending  to  show  that  the  defendant 
had  begun  interference  between  the  plaintiff  and  her  husband 
prior  to  four  years  before  the  bringing  of  the  suit.  This  testi- 
mony was  admitted  only  for  the  purpose  of  tending  to  show 
what  the  disposition  of  the  defendant  was  toward  the  plaintiff's 
husband  during  the  period  of  four  years  prior  to  the  commence- 
ment of  the  suit. 

You  can  not  make  any  such  wrongful  acts  on  the  part  of  the 
defendant,  prior  to  four  years  before  the  commencement  of  this 
suit,  a  ground  of  recovery  here,  because  such  acts  on  her  part, 
if  any  such  are  proven,  are  barred  by  the  statute  of  limitations 
which  is  pleaded. 

2.  Husband  voluntarily  bestowing  affections  on  another — Must 
be  wrongful  act  of  defendant-  A  wife  is  entitled  to  her  hus- 
band's conjugal  affection  and  society,  and  if  you  find  that  the 
plaintiff  in  this  case  has  been,  by  the  wrongful  acts  of  the  de- 
fendant, deprived  of  that  right,  this  will  give  rise  to  a  cause  of 
action  on  her  part  against  the  defendant  and  entitle  her  to 
recover  damages  under  the  rules  above  stated. 

If  the  husband  voluntarily  bestowed  his  affections  upon  the 
defendant,  without  any  wrongful  acts  or  solicitations  or  blan- 
dishments on  the  part  of  the  defendant,  the  plaintiff  will  have 
no  right  to  recover  damages,  and  if  you  find  such  to  be  the  fact, 
your  verdict  should  be  for  the  defendant.  Furthermore,  if  you 
find  the  affections  of  the  plaintiff's  husband  were  entirely  and 
absolutely  alienated  from  the  plaintiff  by  the  defendant's  wrong- 
ful conduct,  prior  to  four  years  before  the  bringing  of  this  suit, 
the  plaintiff  can  not  recover,  by  reason  of  the  bar  of  the  statute 
of  limitations,  unless  you  find  that  his  love  and  affection  was 
withheld  from  her  during  that  period  by  reason  of  the  blandish- 
ments and  seductions  of  the  defendant. 

The  right  of  the  plaintiff  to  recover  damages  must  be  con- 
fined to  the  wrongful  acts  of  the  defendant,  if  any  such  are 
proven,  committed  within  the  period  of  four  years  before  the 
bringing  of  this  action,  and,  of  course,  if  you  find  that  such 
acts  on  the  part  of  the  defendant  within  that  period  did  not 


ALIENATION   OF   AFFECTIONS.  1129 

result  in  alienating  the  affections  of  plaintiff's  husband,  there 
can  not  be  any  recovery,  although  you  might  find  she  had  been 
guilty  of  such  wrongful  conduct  before  that  time  which  resulted 
in  alienating  the  affections  of  plaintiff's  husband.  But  if  you 
should  find  the  fact  to  be  that  the  affections  of  plaintiff's  hus- 
band were  not  entirely  or  absolutely  alienated  from  the  plaintiff 
prior  to  four  years  before  the  bringing  of  this  suit,  but  that  by 
reason  of  the  wrongful  conduct  of  the  defendant  set  out  in  the 
petition,  which  occurred  within  the  period  of  four  years,  his 
affections  have  been  alienated  or  kept  from  the  plaintiff  during 
said  period  of  four  years,  then  to  the  extent  that  you  may  find 
her  wrongful  conduct  has  resulted  in  alienating  his  affections 
from  her  or  in  restraining  them  from  her,  she  will  be  entitled 
to  recover  damages. 

3.  Relationship  of  husband  and  wife  prior  to  act.  There  has 
been  some  evidence  as  to  the  relationship  existing  between  the 
plaintiff  and  her  husband  prior  to  the  wrongful  acts  complained 
of.  It  is  your  duty  to  consider  the  evidence  upon  that  subject, 
if  you  find  that  the  plaintiff  is  entitled  to  recover,  upon  the 
question  of  the  amount  of  damages  to  be  recovered,  for  the 
reason  that  the  greater  the  love  and  affection  of  the  husband  for 
his  wife,  the  greater  is  the  damage  suffered  by  her  when  that 
love  and  affection  is  alienated. 

4.  Malice.  Hatred,  ill  will  or  actual  malice  towards  the  injured 
party  is  not  a  necessary  ingredient  of  legal  malice  as  applied 
to  torts,  nor  is  it  necessary  that  the  act  complained  of  proceed 
from  a  spiteful,  malignant  or  revengeful  disposition.  If  it  be 
wrongful,  unlawful  and  intentional  and  the  natural  and  prob- 
able result  of  the  act  is  to  accomplish  the  injury  complained  of, 
malice  is  implied. 

5.  Abandonment  of  husband,  not  prerequisite  of  suit  by  wife. 
It  is  not  a  prerequisite  to  the  right  of  the  plaintiff  to  maintain 
this  suit  in  her  own  name  that  she  should  have  been  abandoned 
by  her  husband  in  the  literal  sense,  nor  that  she  should  have 
actually  separated  herself  from  him  by  or  without  a  decree  of 
divorce.     If  she  has  suffered  the  wrong  complained  of,  her  right 


1130  INSTRUCTIONS  TO  JURY. 

to  redress  is  absolute;  it  can  not  be  made  to  depend  upon  any 
of  these  conditions,  as  long  as  she  keeps  her  marriage  con- 
tract, so  long  she  has  the  right  to  the  conjugal  society  and 
affections  of  her  husband.  Possibly  she  may  regain  these.  This 
possibility  is  her  valuable  right.  The  defendant  may  not  demand 
that  she  shall  sacrifice  it  for  the  future  as  the  price  of  redress 
for  injuries  in  the  past. 

6.  Measure  of  damages.  The  measure  of  damages  in  aliena- 
tion of  the  affections  of  a  husband  includes  compensation  for  the 
loss  of  affection,  society  and  companionship  of  the  husband, 
compensation  for  mental  suffering  and  distress  of  mind  of  the 
wife.  The  amount  of  such  damages  must  rest  in  the  sound  judg- 
ment and  discretion  of  the  jury,  as  no  exact  rule  can  be  stated 
by  which  such  damages  can  be  measured.  It  must  be  a  reason- 
able amount  in  view  of  all  the  circumstances  of  the  case.1 
i  Baird  v.  Willis,  Common  Pleas  Court,  Franklin  Co.,  O.,  Bigger,  J. 

Sec.  1486.     Claim  of  mistreatment  of  wife  by  husband. 

It  is  claimed  by  the  defendant  that  he  has  produced  evidence 
tending  to  show  that  the  plaintiff  drove  his  wife  away  from  him 
on  account  of  his  cruel  treatment  of  her.  This  evidence,  gentle- 
men, if  true,  is  not  a  defense  in  the  action,  provided  that 
you  find  that  the  defendant  did  alienate  the  affections  of  plain- 
tiff's wife;  but  it  is  evidence  that  you  should  take  into  consid- 
eration, if  you  come  to  that  question,  in  mitigation  of  any  dam- 
ages that  you  think  the  plaintiff  has  sustained.  It  was  intro- 
duced for  that  purpose,  and  for  that  purpose  should  be 
considered  by  you,  and  by  way  of  rebutting  the  claim  of  the 
plaintiff  that  his  wife's  affections  were  alienated  by  the  defend- 
ant. It  is  the  claim  of  the  defendant  that  this  plaintiff  drove 
his  wife  away  on  account  of  his  cruel  acts  towards  her;  drove 
her  from  his  house  and  home,  and  that  this  was  the  reason  and 
on  that  account  she  left,  and  not  by  reason  of  any  acts  or  con- 
duct of  his  that  caused  her  to  separate  from  him.1 

i  Cottle  v.  Kellogg,  Trumbull  County  C.  P..  Gillmer.  J.  The  bad  charac- 
ter of  the  husband  will  not  mitigate  damages,  unless  he  is  guilty 
of  unchastity  or  other  wrong  to  the  wife.  Norton  v.  Warner,  0 
Conn.  172. 


ALIENATION    OF   AFFECTIONS.  1131 

Sec.  1487.  Connivance  of  or  encouragement  by  plaintiff  of 
alienations — Or  his  own  misconduct  bars 
recovery. 

If  the  jury  finds  that  plaintiff  permitted  or  connived  at  or 
consented  to  or  encouraged  such  alienations  and  conduct  from 
the  defendant  to  his  wife  or  from  his  wife  to  the  defendant,  then 
your  verdict  must  be  for  the  defendant,  notwithstanding  you 
may  believe  from  the  evidence  that  such  attentions  and  conduct 
finally  resulted  in  alienating  the  affections  of  the  plaintiff's 
wife  from  him  and  in  her  separation  from  him. 

If  she  had  any  affection  for  plaintiff  and  the  same  was 
alienated  by  the  conduct  and  actions  of  plaintiff  himself  towards 
her,  or  by  his  neglect  of  her,  or  from  any  cause  whatever  other 
than  the  intentions,  conduct  or  influence  of  defendant,  with 
the  wrongful  and  willful  purpose  and  intent  of  alienating  her 
affections  from  her  husband,  or  inducing  her  to  separate  or 
remain  away  from  him,  then  your  verdict  will  be  for  the  de- 
fendant.1 

i  Fuller  r.  Robinson,  230  Mo.  22;    130  S.  W.  343;   Am.  Ann.  Cus.    1912   A, 
938  and  note. 

Sec.  1488.     Preponderance  of  evidence  only,  essential. 

The  jury  are  instructed  that  in  cases  of  this  kind,  where  an 
illegal  act  is  charged  or  involved  in  the  civil  suit,  the  same  rules 
of  evidence  generally  applicable  in  civil  suits  prevail,  as  against 
those  which  should  be  followed  if  you  were  investigating  the 
criminal  charge  involved  in  a  criminal  case.  Adultery  is  made 
a  crime  by  our  laws,  and  if  you  were  trying  that  issue  under  an 
indictment,  you  would  be  required  to  find  the  defendant  guilty 
thereof  beyond  a  reasonable  doubt.  Not  so  in  a  civil  proceeding 
as  here,  where  it  is  charged,  as  in  this  case,  that  the  defendant 
has  committed  adultery  with  the  wife  of  the  plaintiff,  you  are 
not  required  to  be  satisfied  for  the  purposes  of  this  suit  beyond 
a  reasonable  doubt,  that  the  defendant  has  been  guilty  of  adul- 
tery with  the  wife  of  the  plaintiff,  that  you  are  only  to  look  to 
all  the  evidence,  and  if  you  find  by  a  preponderance  of  the  evi- 


1132  INSTRUCTIONS  TO   JURY. 

dence  that  the  defendant  committed  adultery  with  plaintiff's 
wife,  then  upon  that  point,  as  one  of  the  facts  in  this  case,  you 
may  find  for  the  plaintiff.1 

i  There  certainly  can  be  no  doubt  but  that  the  rule  that  the  doctrine  of 
reasonable  doubt  of  criminal  cases  does  not  apply  to  civil  issues. 
The  great  weight  of  authority  and  the  better  view  is  that  in  civil 
issues  the  result  should  follow  the  preponderance  of  evidence,  even 
though  the  result  imputes  the  crime.  This  rule  has  been  adopted 
in  Ohio.  Lyon  v.  Fleahmann,  34  0.  S.  151;  Shaul  v.  Norman,  34 
O.  S.  157;  Jones  v.  Greaves,  26  O.  S.  2.  This  is  at  least  the  case 
in  all  cases  aside  from  those  enormous  crimes,  Id.  See  fully  opinion 
in  34  O.  S.  151-156,  and  authorities  cited.  It  is  treated  very  fully 
in  Wharton's  Ev.  Sec.  1246;    1  Greenleaf's  Ev.  Sec.  13a,  note. 

Sec.  1489.     Burden  and  character  of  proof  of  adultery. 

Now,  gentlemen,  you  have  listened  to  the  evidence  in  this 
case  patiently,  and  the  question  as  to  whether  the  defendant 
has  had  sexual  intercourse  with  the  plaintiff's  wife  at  any  time 
is  for  your  determination,  after  due  consideration  of  all  the  facts 
and  circumstances  of  this  case,  as  shown  by  the  evidence.  The 
burden  is  upon  the  plaintiff  to  prove  said  acts  by  a  preponder- 
ance of  the  evidence.  If  he  has  failed  to  establish  that  fact  by 
the  weight  of  the  evidence,  then  your  decision  on  that  point 
should  be  against  the  plaintiff.  It  is  not  claimed  on  the  part  of 
plaintiff  that  he  has  produced  any  witness  who  has  testified  to 
seeing  any  act  of  adultery  between  the  defendant  and  plaintiff's 
wife,  but  the  plaintiff  claims  that  he  has  shown  such  facts  and 
circumstances  as  will  warrant  the  conclusion  that  adultery  was 
committed.  The  burden  is  upon  the  plaintiff  to  show  such  a 
state  of  facts  as  will  satisfy  you  of  their  truth  by  a  preponder- 
ance of  the  evidence.1 
i  Nye,  J.,  in  Wagner  v.  Shaw,  Medina  Co.  Com.  PI. 

Sec.  1490.    Measure  of  damages. 

If,  under  these  instructions,  however,  you  find  the  issues 
joined  for  the  plaintiff,  then  your  next  inquiry  will  be  as  to  the 
measure  of  damages  this  plaintiff  has  sustained  on  account  of 
the  wrongful  acts  of  this  defendant,  alleged  in  his  petition,  by 


ALIENATION    OF   AFFECTIONS.  1133 

which  he  lost  the  affection  and  confidence  of  his  wife.  This  will 
include  not  only  the  loss  of  the  wife's  affections,  but  for  the 
comfort  of  the  wife's  society.  If  you  shall  find  that  the  de- 
fendant seduced  the  plaintiff's  wife,  then  you  should  include 
also  dishonor  of  the  marriage  bed;  the  mortification  and  sense 
of  shame  produced  to  the  husband  through  the  knowledge  and 
results  of  such  seduction,  and  also  loss  of  the  wife's  services  if 
she  separated  from  her  husband  through  such  seduction. 

It.  is  difficult'  to  lay  down  any  precise  rule  for  you  to  ascer- 
tain or  measure  the  amount  of  compensation  or  damages  that 
the  plaintiff  would  be  entitled  to,  provided  that  you  find  for 
the  plaintiff. 

The  jury  should,  however,  exercise  their  own  judgment  and 
common  sense  in  determining  what  amount  of  damages,  if  any, 
would  be  a.  fair  compensation  to  the  plaintiff  for  whatever  injury 
they  may  find  from  the  evidence  he  has  suffered  on  account  of 
the  wrongful  acts  alleged  and  averred  in  his  petition.1 
iGillmer,  J.,  in  Cottle  v.  Kellogg;  Matheis  v.  Mazet,  164  Pa.  St.  580. 


CHAPTER   LXX. 
ANIMALS. 


SEC. 

1491.  Owner  of  domestic  animal  not 

liable  for  injury  when  it 
is  rightfully  where  it 
may  be.  unless  it  is 
vicious — Rule  otherwise 
when  animal  breaks  close 
of  another. 

1492.  Liability   of  owner  of  domes- 

tic animal  trespassing  on 
lands  of  another. 

Ferocious  dog  at  large — 
Knowledge  of  its  charac- 
ter —  What  constitutes 
keeping  of. 

Scienter — Proof  of. 

Defense  that  dog  fastened  on 
premises. 


SEC. 

1496. 


1493. 


1494. 
1495. 


Liability  of  trespasser  leav- 
ing gateway  so  horses 
escape  into  another  field, 
where  injury  done  in 
fight  with  strange  horses. 

1.  Statement  of  claim. 

2.  Temporary  possession  suf- 

ficient to   claim   of  tres- 


Disposition  of  animal. 

Fighting,  proximate  cause 
of  wrongful  trespass  and 
injury. 

Jury  to  consider  proba- 
bilities. 

Proximate  cause. 


Sec.  1491.  Owner  of  domestic  animal  not  liable  for  injury 
when  it  is  rightfully  where  it  may  be,  unless 
it  is  vicious — Rule  otherwise  when  animal 
breaks  close  of  another. 

It  is  a  rule  of  law  that  the  owner  of  a  domestic  animal  is  not  in 
general  liable  for  an  injury  committed  by  such  animal  while  in 
a  place  where  it  rightfully  may  be,  unless  it  is  shown  that  the 
animal  was  vicious  in  the  particular  complained  of,  and  that 
the  owner  had  notice  of  such  vicious  propensity. 

And  where  an  animal  breaks  into  the  close  of  another  and 
there  damages  the  real  or  personal  property  of  one  in  possession, 
the  owner  of  the  trespassing  animal  is  liable  without  reference 
to  whether  such  animal  was  vicious,  and  without  reference  to 
whether  such  vicious  propensity  was  known  to  the  owner,  for  the 
law  holds  a  man  answerable  not  only  for  his  own  trespass,  but 
for  that  of  his  domestic  animal.     The  natural  and  well-known 


1134 


ANIMALS.  1135 

propensity  of  horses  is  to  rove,  and  the  owner  is  bound  to  con- 
fine them  on  his  own  land,  so  that  if  they  escape  and  do  mis- 
chief of  the  land  of  another,  under  the  circumstances  where  the 
other  is  not  at  fault  the  owner  ought  to  be  liable.1 
i  Morgan  v.  Hudnell,  52  0.  S.  552;  Dolph  v.  Ferris,  7  Watts  &  Serg.  367. 

Sec.  1492.     Liability  of  owner  of  domestic  animal  trespassing 
on  lands  of  another. 

If  the  defendant's  horse  was  at  the  time  trespassing  in  plain- 
tiff's field,  on  plaintiff's  land,  or  on  the  land  of  a  third  party 
where  plaintiff  was  pasturing  his  horse  by  the  month,  for  a  con- 
sideration paid  by  plaintiff  to  such  owner,  and  there  attacked 
and  killed  plaintiff's  horse,  defendant  is  liable  for  the  injury, 
whether  he  knew  or  did  not  know  of  the  vicious  propensity  of  his 
horse. 

If  the  jury  find  that  the  defendant's  horse  was  in  pasture  on 
his  wife's  premises,  and  while  there  broke  over  part  of  the 
partition  fence,  separating  her  said  lands  from  the  field  in 
which  plaintiff's  borse  was  being  rightfully  pastured  by  him, 
then  the  defendant's  horse  was  unlawfully  in  the  place  where 
the  plaintiff's  horse  was  on  pasture,  and  in  such  case,  if  tbe 
jury  find  that  he  killed  plaintiff's  horse,  the  defendant  is  liable 
to  plaintiff  for  the  injury,  whether  his  horse  was  in  fact  vicious 
or  not,  and  whether  he  knew  of  such  viciousness  or  not.1 
i  Morgan   v.  Hudnell,   52  0.  S.   552. 

Sec.  1493.  Ferocious  dog  at  large — Knowledge  of  its  charac- 
ter— What  constitutes  keeping  of. 
"A  ferocious  dog,  known  to  the  keeper  to  be  accustomed  to 
bite  mankind,  is  to  be  regarded  as  at  large,  within  the  common 
import  of  those  terms,  when  he  is  so  free  from  restraint  as  to 
be  liable  to  do  mischief  to  man.  and  this,  such  a  dog  is  always 
liable  to  do  when  not  physically  restrained.  You  will,  there- 
fore, determine  from  the  evidence  whether  or  not  the  defendant 
properly  restrained  the  dog  in  question  as  the  keeper  of  a 
vicious  and  ferocious  dog  is  bound  to  keep  it  from  doing  injury 
at  his  peril." 


1136  INSTRUCTIONS  TO   JURY. 

If  you  find  from  the  evidence  that  the  dog  in  question  was 
vicious  and  ferocious,  and  known  as  such  to  the  defendant,  and 
you  further  find  that  the  defendant  was  the  head  of  her  family, 
having  possession  and  control  of  a  house  or  premises,  and  she 
suffered  or  permitted  the  dog  to  be  kept  on  her  said  premises, 
in  the  way  such  domestic  animals  are  usually  kept — as  a  member 
of  the  family,  so  to  speak  (in  so  far  as  a  house  dog  may  be 
termed  a  member  of  one's  family) — such  head  of  a  family,  the 
defendant  herein,  is  to  be  regarded  the  keeper  and  harborer  of 
such  dog,  and  it  makes  no  difference  whether  the  defendant  was 
the  owner  of  the  dog  or  not. ' '  * 

i  Request  given  in  O'Farrell  v.  Alberty,  Lucas  County.  Affirmed  by  Cir- 
cuit Court;   settled  and  dismissed  in  Supreme  Court. 

One  who  knowingly  and  wrongfully  suffers  a  ferocious  dog  to  go  freely 
about  his  premises  where  he  is  also  fed  and  housed  is  liable  for  in- 
juries done  by  such  dog,  regardless  of  the  question  of  ownership. 
Frammel  v.  Little,  16  Ind.  251;  1  Cummings  v.  Riley,  52  N.  H. 
.368;  Marsh  v.  Jones,  21  Vt.  378;  Meibus  v.  Dodge,  38  Wis.  300; 
Barrett  v.  Madden  &  M.  R.  R.  Co.,  3  Allen  (Mass.)  101;  3  Loomis 
v.  Terry.  17  Wend.  496.     See  Nordeck  v.  Loeffler,  2  W.  L.  B.  258. 

Ownership  is  sometimes  implied  by  mere  possession,  and  so,  likewise,  it  is 
presumed  that  tbe  owner  of  the  dog  is  the  person  who  keeps  or  har- 
bors it.  And  the  ownership  may  be  shown  as  a  circumstance  in- 
dicative of  the  keeping  of  the  animal.  2  Sh.  &  Red.  on  Neg.  Part 
7: — Chap.  XXX,  §  626 — 636;  Buddington  v.  Shearer.  20  Pick.  477; 
Grant  v.  Ricker,  74  Maine  487;  Dickson  v.  McCoy,  30  N.  Y.  400: 
Sullivan  v.  Scripture,  3  Allen  (Mass.)  564;  Smith  v.  Jacques,  6 
Conn.  580;   Oakes  v.  Spaulding,  40  Verm.   347. 

Sec.  1494.     Scienter— Proof  of. 

' '  To  enable  the  plaintiff  to  recover  he  must  prove  that  the  dog 
was  accustomed  to  bite  mankind,  and  that  it  must  also  be  proved 
that  the  defendant  had  knowledge  that  he  was  so  accustomed  to 
bite ;  that  if  a  single  instance  of  biting  mankind  previous  to  the 
act  complained  of  in  the  declaration  was  fully  and  satisfactorily 
proved  to  the  jury  and  a  knowledge  of  such  act  on  the  part  of 
the  defendant  was  proved  in  like  manner,  that  had  been  held 
sufficient  to  warrant  a  jury  in  finding  a  verdict  for  the  plaintiff 
in  cases  of  this  kind ;  but  that  the  force  of  such  testimony  would 
depend  much  upon  the  circumstances  attending  the  transaction, 


ANIMALS.  1137 

as,  whether  they  indicated  a  disposition  to  bite  without  provo- 
cation, or  the  contrary."  1 

i  Arnold  r.   Norton,  25   Conn.   92.     Thompson  on   Trials,   Sec.    1493.      The 
Statute   in   Ohio   which   abrogated   the   common-law   rule    (13   O.    S. 

485)    has   since  been   repealed. 

Sec.  1495.     Defense  that  dog  fastened  on  premises. 

The  defendant  may  show  in  her  defense  that  this  dog  wa.s 
properly  secured  there  upon  the  premises,  was  secured  so  that 
he  could  not  come  at  anyone  to  commit  any  damage,  and  in  that 
connection  you  must  consider  the  relations  existing  between 
plaintiff  and  defendant  on  the  premises  of  the  former  of  the 
plaintiff  there  to  the  defendant  and  her  premises :  If  the  plain- 
tiff was  there  at  work  on  the  premises  with  Mrs.  O.'s  knowledge 
and  consent,  then  he  would  have  a  right  to  go  about  the  premises 
in  a  reasonable  way,  to  carry  out  and  dispatch  the  business  that 
lie  was  employed  to  do;  and  if,  in  going  about  in  that  way,  he 
was  bitten  by  a  dog,  then  he  would  have  a  right  to  recover: 
though,  if  you  find  that  the  dog  was  properly  secured,  was  kept 
there  securely  shut  up  by  the  defendant,  or  with  her  knowledge, 
knowing  that  it  was  so  kept  so  that  he  could  not  come  at  any- 
body, and  if  A.,  the  plaintiff,  was  told  not  to  go  there,  and  he 
understood  that  the  dog  was  there,  and  knew  that  it  was  dan- 
gerous to  go  there — knew  why  he  was  forbidden  to  go  there  and 
understood  it — then,  if  he  went  where  the  dog  was  securely  shut 
up  and  kept  safely — knowing  that  he  was  dangerous — if  that  is 
shown  and  made  out  by  the  evidence — by  a  preponderance  of 
evidence — then  the  plaintiff  can  not  recover.1 
i  O'Farrell  r.  Alberty,  S.  C.  No.  3.291,  Lucas  County,  Harmon,  J. 

Sec.  1496.  Liability  of  trespasser  leaving  gateway  so  horses 
escape  into  another  field,  where  injury  done 
in  fighting  with  strange  horses. 

1.  Statement  of  claim. 

2.  Temporary  possession  sufficient  to  claim  of  trcsuass. 

3.  Disposition  of  animal. 


1138  INSTRUCTIONS  TO   JURY. 

4.  Fighting,  proximate  cause  of  wrongful  trespass  and  in- 

jury. 

5.  Jury  to  consider  probabilities. 

6.  Proximate  cause. 

1.  Statement  of  claim.  The  pleadings  present  the  question 
whether  the  plaintiff  is  entitled  to  recover  from  the  defendant, 
R.,  the  value  of  a  horse  owned  by  him  and  claimed  to  have  been 
injured  by  the  wrongful  act  of  the  defendant.  That  wrongful 
act  consists  of  a  charge  of  wrongful  trespass  upon  lands  in 
which  the  plaintiff  claims  some  interest  by  way  of  the  right  of 
possession  as  a  pasture  field. 

The    plaintiff   alleges   that   his   horse    was   reasonably    worth 

$ at  the  time  of  the  injury  by  the  alleged  wrongful  act 

of  the  defendant.  The  defendant  denies  the  commission  of  a 
wrongful  act  by  him. 

The  evidence  without  dispute  shows  that  the  plaintiff  had 
rented  the  S.  field,  so-called,  from  A.  H.  S.  for  pasture.  The 
undisputed  evidence  also  shows  that  the  gateway  in  question 
was  so  constructed  as  that  it  could  not  be  opened  without  tear- 
ing it  apart  cr  removing  one  of  the  boards ;  that  it  was  so  con- 
structed that  it  could  not  be  loosened  from  the  west  post  without 
that  board  being  taken  out ;  so  that  stock  confined  in  the  S.  field 
could  not  in  any  wise  remove  that  gate.  The  undisputed  facts 
are  that  R.  drove  the  wagon  loaded  with  hay  through  the  gate- 
way between  the  field  in  possession  of  the  plaintiff  in  which  his 
two  horses  were  at  the  time,  and  the  B.  field.  The  plaintiff 
testified  that  he  did  not  give  permission  to  R.  to  go  through 
that  field,  and  that  he  did  not  have  any  knowledge  that  he  did 
go  through  the  field  until  after  the  act  was  committed. 

2.  Temporary  possession  sufficient  to  claim  of  trespass.  The 
court  states  to  the  jury  as  matter  of  law  that  under  the  testi- 
mony in  this  case  the  plaintiff,  P.,  had  such  a  temporary  right 
of  possession  to  that  field,  and  especially  to  the  benfits  to  be 
derived  from  the  fence  and  the  gateway  for  the  protection  of 
his  stock  being  grazed  therein,  as  to  entitle  him  to  complain  of 
the  wrongful  act  of  trespassing  upon  that  property,  which  the 


ANIMALS.  1139 

court  states  as  matter  of  law  constitutes  a  wrong  and  a  trespass 
upon  the  rights  of  the  plaintiff  P.  So  that  in  view  of  this  in- 
struction to  the  jury  you  will  disregard  all  arguments  and  claims 
of  counsel  reflecting  upon  that  point  which  are  not  consistent 
with  the  statement  made  by  the  court.  The  court  states  to  you 
that  as  a  matter  of  law  and  fact  the  defendant,  R.,  was  guilty 
of  committing  a  wrongful  act  in  going  through  this  gateway, 
which  was  a  trespass  upon  the  temporary  right  of  possession 
which  existed  in  the  plaintiff,  P. 

The  claim  of  plaintiff  is  that  the  injury  to  his  horse  was  caused 
by  the  act  of  R.  in  driving  through  the  gateway  and  by  leaving 
the  same  open  so  that  the  horse  of  plaintiff  passed  into  and  upon 
the  B.  field,  and  that  the  bay  horse  of  B.  kicked  the  horse  of 
plaintiff,  which  made  it  necessary  to  kill  it. 

There  is  no  evidence,  gentlemen,  in  this  case  that  brings  it 
within  the  rule  of  law  applicable  to  vicious  animals;  and  any 
liability  of  the  defendant,  R.,  must  rest  not  upon  that  ground, 
but  upon  other  grounds.  And  you  will,  therefore,  pay  no  atten- 
tion to  the  question  of  what  is  termed  in  law  a  vicious  animal. 

3.  Disposition  of  animal.  Evidence  has  been  admitted,  how- 
ever, for  your  consideration  as  to  the  disposition  and  character 
of  the  horses  in  question.  That  you  may  consider,  for  whatever 
you  deem  it  worth  in  deciding  the  questions  of  fact  submitted 
to  you.  But  it  has  no  relation  to  the  liability  of  one  who  owns 
a  vicious  horse  and  who  has  knowledge  thereof  for  any  injury  to 
another  by  such  horse. 

4.  Injury  to  horse  by  fighting  proximate  cause  of  wrongful 
trespass.  The  jury  is  instructed  that  if  the  injury  to  the  horse 
of  plaintiff  was  directly  and  proximately  caused  by  the  wrongful 
act  of  the  defendant  in  passing  through  the  gateway  of  plaintiff 
without  right,  and  wrongfully,  he  may  be  held  liable  therefor. 
Even  though  the  defendant  did  undertake  to  erect  a  temporary 
barrier  in  the  gateway  after  upsetting  the  load  of  hay  and 
breaking  the  gate  post,  if  the  jury  find  that  he  did  erect  the 
same;  and  even  though  he  used  reasonable  and  ordinary  care  in 
such  act,  and  though  he  believed  that  he  had  made  reasonable 


1140  INSTRUCTIONS  TO  JURY. 

provision  to  keep  the  horses  from  passing  from  one  field  to 
the  other,  still  if  the  horses  were  attracted  to  the  place  by  the 
hay  which  was  upset  at  such  point,  and  the  temporary  barrier 
so  erected  was  insufficient  to  keep  the  horses  from  passing 
through  to  the  other  field,  notwithstanding  such  barrier,  and  if 
the  horse  of  plaintiff  did  pass  into  the  field  of  B.  because  of  the 
wrongful  act  and  trespass  of  R.  and  mingle  with  the  horses  of 
B.  and  was  injured  by  reason  of  fighting  with  the  horse  of  B., 
and  because  of  such  fighting,  whether  by  being  kicked  by  B.'s 
horse  or  by  the  other  horse  of  the  plaintiff,  the  defendant,  R., 
may  be  held  responsible  for  such  injury  if  the  jury  find  that 
such  fighting  and  such  injury  was  the  direct  and  proximate  cause 
of  such  wrongful  trespass  by  R.  upon  the  temporary  possession 
of  the  property  of  the  plaintiff. 

If  the  jury  find  that  the  fighting  between  the  horses  of  plain- 
tiff would  not  have  occurred  or  would  not  have  taken  place  but 
for  their  entry  into  the  field  of  B.  and  because  of  their  mingling 
with  or  coming  in  contact  with  the  horse  of  B.  in  his  field,  then 
the  jury  may  find  the  defendant  liable  for  the  injury  to  plain- 
tiff's horse.  Or  if  the  jury  find  that  defendant  did  not  erect 
the  temporary  barrier  as  claimed  by  him,  and  the  horses  of 
plaintiff  passed  into  the  field  of  B.  and  became  engaged  in  a 
fight'  with  the  horse  of  B.,  and  plaintiff's  horse  was  injured, 
which  would  not  have  happened  but  for  the  wrongful  act  of  R., 
the  latter  will  be  liable  if  such  injury  resulted  as  the  proximate 
cause  of  the  M-rongful  act  and  trespass  which  the  court  states  to 
you  was  committed  by  the  defendant,  R. 

5.  Jury  may  consider  probabilities.  It  is  not  required  that  the 
jury  shall  be  absolutely  convinced  of  the  existence  of  the  essen- 
tial facts  to  fix  the  responsibility  of  the  defendant.  On  the  con- 
trary, the  law  permits  you  to  deal  in  probabilities,  or  to  decide 
the  facts  as  you  may  find  them  to  have  probably  been.  And  the 
evidence  in  this  case  does  not  consist  alone  in  the  mere  state- 
ments of  witnesses.  Nor  do  you  have  to  believe  such  statements 
merely  because  they  are  made  by  a  witness  or  any  witness,  if 
you  deem  it  proper  to  disbelieve  the  same.    But  you  may  draw 


ANIMALS.  1141 

such  inferences  from  facts  and  conditions  which  you  may  find 
to  be  probably  established  by  the  evidence  and  apply  the  legal 
consequences  attaching  thereto  according  to  the  rule  of  liability 
contained  in  the  instructions  as  to  the  law  given  you  by  the 
court.  You  may  consider  the  probability  of  the  horses  passing 
over  and  through  the  alleged  temporary  barrier;  whether  the 
gate  would  have  been  probably  broken  by  the  horses  passing 
through  the  same,  or  whether,  looking  to  the  inferences  from 
facts  and  alleged  claims  made  in  evidence,  or  other  claims  made 
in  evidence  as  to  the  location  of  the  rake  and  the  fence  boards, 
the  alleged  temporary  barrier  was  or  was  not  erected.  The 
facts  are  entirely  for  the  jury  to  decide. 

6.  The  proximate  cause.  The  proximate  cause  of  an  injury  is 
the  direct  or  efficient  cause  of  the  wrong  done,  the  act  which  if 
it  had  not  been  committed,  the  injury  would  not  have  been  done. 
The  jury  will  make  its  deductions  from  the  evidence  and  find 
the  ultimate  facts  or  fact  therefrom  and  apply  the  rule  of 
liability  contained  in  the  charge  of  the  court  and  affix  the  legal 
consequences  applicable  thereto  by  your  verdict.1 
i  Pendleton  v.  Ross,  Franklin  Co.  Com.  PI.,  Kinkead,  J. 


CHAPTER    LXXL 
ASSAULT  AND  BATTERY. 


1497.  Assault  and  battery  defined. 

1498.  Assault  by  teacher  on  pupil. 

1499.  Assault   and   battery   by   rail- 

road      employee  —  Flag- 
man. 

1.  Statement  of  claims.  1500, 

2.  Burden  of  proof  and  cred- 

ibility   of    witnesses       1501. 
(omitted) . 

3.  Assault    and    battery    de- 

fined. 1502. 

4.  Relative  rights  and  duties 

of   pedestrians   and    rail-        1503. 
way     company    at    rail- 
road   crossings.  1504. 

5.  Same — Right  and  duty  of 

flagman  and   responsibil- 
ity   of    railway    for    his       1505. 
acts. 

6.  Assault   and   battery   may       1506. 

be  negligently  committed. 

7.  Proximate  cause. 


8.  Direction  as  to  verdict  for 

plaintiff. 

9.  Measure  of  damages. 

10.  When  verdict  may  be  for 
defendant. 

When  committed  in  self-de- 
fense. 

Force  used  in  repelling  as- 
sault, not  nicely  meas- 
ured. 

Defense  of  self  and  child — 
Force  used. 

How  far  one  may  go  in  pro- 
tection  of   self    or    child. 

One  provoking  assault  may 
recover  if  he  afterwards 
withdrew. 

Damages  recoverable  in  civil 
action. 

Effect  of  conviction  in  crim- 
inal prosecution  on  civil 


Sec.  1497.     Assault  and  battery  defined. 

Any  unlawful  beating  or  other  wrongful  physical  violence  or 
constraint  inflicted  on  a  human  being,  without  his  consent,  is  an 
assault  and  battery. 

If  a  person  only  so  much  as  lay  his  finger  upon  another,  with- 
out his  consent,  in  a  rude,  angry,  insulting  or  indecent  manner, 
he  commits  an  assault  and  battery. 

But  gently  touching  or  laying  the  hand  upon  another  in  a 
friendly  way,  without  any  harmful  or  evil  intent,   is  not  an 
assault  and  battery. 
1142 


ASSAULT   AMD   BATTEL  .  1143 

If  two  neighbors  meet  and  shake  hands,  no  assault  and  battery- 
is  committed. 

If  one  friend  steps  up  and  lays  his  hand  gently  on  the 
shoulder  of  another,  with  the  intention  of  speaking  with  him  or 
for  some  other  proper  purpose,  no  offense  would  be  committed, 
but  such  an  act  as  this  might  be  an  offense,  even  though  done 
without  any  feeling  of  anger.  If  instead  of  laying  the  hand 
gently  on  the  shoulder,  a  great  degree  of  violence  were  used, 
so  as  to  cause  physical  pain,  the  rudeness  of  the  act  might  render 
the  party  doing  it  liable  either  civilly  or  criminally  for  assault 
and  battery.1 

i  Hawes,  J.,   in   Harper   v.   Hart,   S.   C.    1500.     Assault   defined   in   Fox   v. 
State,  34  0.  S.  377. 

Sec.  1498.     Assault  by  teacher  on  pupil. 

1.  Right  to  correct  pupil,  extent  thereof.  The  defendant 
claims  that  in  correcting  C,  a  pupil,  he  took  hold  of  him,  and 
administered  such  corporal  punishment  as  was  necessary  for  the 
proper  government  of  the  school,  and  that  he  had  a  right  to 
administer  said  punishment,  and  in  doing  what  he  did  he  com- 
mitted no  assault  and  battery  and  no  offense  whatever. 

You  are  instructed  that  a  school  teacher  has  a  right  to  give 
moderate  corporal  correction  to  his  pupils  for  disobedience  to 
his  lawful  commands,  negligence,  or  for  insolent  conduct.1 

It  is  not  an  assault  and  battery  for  a  teacher  to  correct  and 
punish  a  pupil  in  a  reasonable  way.  But  if  the  punishment  be 
extreme,  unreasonable  or  cruel,  or  such  as  would  naturally  occa- 
sion permanent  injury  to  the  pupil,  or  if  inflicted  merely  to 
gratify  an  evil  passion,  the  teacher  would  not  be  justified,  and 
would  be  guilty  of  assault  and  battery.2 

The  right  of  a  school  teacher  to  correct  his  scholars  has  been 
practically  and  judiciously  sanctioned,  but  the  punishment  must 
not  exceed  the  limits  of  moderate  correction.  A  teacher,  in  the 
exercise  of  the  power  of  corporal  punishment,  may  not  make 
such  power  a  pretext  of  cruelty  or  oppression,  but  the  cause 
must  be  sufficient,  the  instrument  suitable,  and  the  manner  and 


1144  INSTRUCTIONS  TO   JURY. 

extent  of  correction,  the  part  of  the  person  to  which  it  is  ap- 
plied, and  the  temper  in  which  it  is  inflicted  should  be  distin- 
guished with  the  kindness,  prudence  and  propriety  which  become 
the  station  of  the  teacher.  The  jury  will  consider  and  determine 
whether  the  defendant  was  justified  in  administering  or  inflict- 
ing any  punishment  upon  C. ;  whether  what  was  inflicted  was 
reasonable  and  proportionate  to  the  offense  of  the  pupil,  or 
appropriate  in  its  kind  and  character,  such  as  a  teacher  had  a 
right  to  inflict. 

If  you  find  that  the  conduct  of  the  pupil  was  such  as  to 
deserve  and  merit  punishment,  then  as  a  matter  of  law  the 
defendant  was  justified  in  inflicting  such  punishment  as  the 
particular  circumstances  of  that  case  reasonably  required  and 
deserved. 

If  you  find  that  the  conduct  of  the  pupil  was  such  as  not  to 
merit  or  deserve  punishment,  then  as  a  matter  of  law  the  de- 
fendant was  not  justified  in  inflicting  any  punishment  whatever 
upon  him.  The  defendant  would  not  be  justified  in  inflicting 
corporal  punishment  upon  the  person  of  C.  without  any  just 
cause,  nor  unless  it  was  done  for  the  purpose  of  correcting  or 
disciplining  for  a  violation  of  the  defendant's  lawful  and  rea- 
sonable commands  as  such  teacher. 

The  defendant  would  not  be  justified  in  inflicting  corporal 
punishment  upon  the  pupil  for  the  purpose  of  gratifying  the 
defendant's  passion  or  malice;  if  it  was  done  for  the  mere 
purpose  of  gratifying  the  passion  or  malice  of  the  defendant  and 
without  just  cause,  then  any  punishment  inflicted  for  that  pur- 
pose would  be  unlawful  and  constitute  an  assault  and  battery. 

If  the  conduct  of  the  pupil  was  such  as  to  deserve  and  merit 
punishment,  it  was  the  duty  of  defendant  to  do  it  in  a  reason- 
able and  moderate  manner,  and  to  use  only  such  means  as  were 
reasonable  and  proportionate  to  the  offense  committed  by  the 
pupil. 

But  if  you  find  from  the  evidence  that  there  was  a  just  cause 
for  the  punishment,  and  that  the  defendant  used  extreme,  un- 
reasonable and  cruel   punishment,  he  would  be  guilty  for  the 


ASSAULT   AND   BATTERY.  1145 

excessive  punishment  so  used.  And  if  the  excessive  punishment 
was  unreasonable  and  grossly  disproportionate,  such  excess 
would  constitute  an  assault  and  battery. 

If  you  find  from  the  evidence  that  the  conduct  of  the  pupil  was 
such  as  to  justify  the  defendant  in  punishing  him,  it  was  the 
duty  of  the  defendant  to  use  a  suitable  and  proper  instrument, 
and  administer  punishment  in  a  reasonable  and  proper  manner, 
and  if  the  defendant  punished  the  pupil  in  an  unreasonable  and 
improper  manner,  by  reason  of  a  sudden  and  violent  passion 
through  malice,  such  punishment  would  not  only  be  unjusti- 
fiable, but  unlawful. 

If  you  find  that  he  was  not  justified  in  administering  any 
punishment,  and  you  further  find  that  the  defendant  unlawfully 
struck,  beat,  wounded,  or  ill  treated  the  pupil,  then  you  should 
so  determine  by  your  verdict. 

But  if  you  find  from  the  evidence  that  the  conduct  of  the 
pupil  was  such  as  to  merit  and  deserve  some  punishment,  it  will 
be  necessary  for  you  to  go  further  and  determine  from  the 
evidence  whether  the  punishment  administered  was  reasonable 
and  commensurate  with  the  offense  committed.  If  you  find  it 
was,  then  the  defendant  would  not  be  guilty.3 

i  Reeves  Dom.  Kel.  534;    ]   Bishop's  Cr.  Law,  sec.  88(5. 

2  Field's  L.   B.,   Sec.   207:    Boyd   v.   State,    16   Am.   St.    31;    1    Bishop's  Cr. 

Law  sec.  88G. 

3  Nye,  J.,  in   State  v.  Joseph  Seaton.  Medina  Co.  Com.    Pleas;    1   Bishop's 

Cr.  Law,  sec.  886. 

Sec.  1499.    Assault  and  battery  by  railroad  employee  or  flag- 
man. 

1.  Statement  of  claim. 

2.  Burden  of  proof  and  credibility  of  witnesses  (omitted). 

3.  Assault  and  battery  defined. 

4.  Relative   rights  and  duties  of  pedestrians   and   railway 

company  at  railroad  crossing. 

5.  Same — Right  and  duty  of  flagman  and  responsibility  of 

railway  for  his  acts. 

6.  Assault  and  battery  may  be  negligently  committed. 


1146  INSTRUCTIONS  TO  JURY. 

7.  Proximate  cause. 

8.  Direction  as  to  verdict  for  plaintiff. 

9.  Measure  of  damages. 

10.   When  verdict  may  be  for  defendant. 

1.  Statement  of  claims.  The  plaintiff  brings  this  action  against 
the  railway  company  for  an  alleged  assault  and  battery  claimed 
to  have  been  committed  by  the  servant  of  the  defendant  who 
was  at  the  time  in  question  acting  as  flagman.  It  is  charged 
that  the  flagman,  while  engaged  in  his  duties  and  in  the  line  of 
his  employment,  with  force  and  violence  maliciously,  recklessly 
and  without  cause  or  provocation,  assaulted  plaintiff,  etc. 

The  defendant  enters  a  general  denial. 

3.  Assault  and  battery  defined  and  explained.  The  charge 
contained  in  the  petition  is  assault  and  battery.  An  assault  and 
battery  is  either  an  unlawful,  intentional  and  willful  injury  to 
the  person  of  another,  or  it  is  a  willful,  wanton,  careless  or 
negligent  commission  of  an  act  of  violence  to  the  person  of 
another,  which  is  the  proximate  cause  of  the  injury.1 

4.  Relative  rights  and  duties  of  pedestrians  and  railway  com- 
pany at  railroad  crossing.  Plaintiff  had  the  right  to  cross  over 
the  railway  tracks  of  the  defendant  at  the  crossing  in  question ; 
but  it  was  his  duty  to  refrain  from  passing  over  the  tracks  when 
trains  or  engines  of  the  railway  company  were  approaching  such 
crossing ;  and  it  was  also  his  duty  to  give  heed  to  any  signal  or 
warning  which  may  have  been  given  him  by  the  flagman  of  the 
defendant,  if  any  the  jury  find  were  given. 

At  the  time  when  a  railway  train  and  a  foot  passenger  or 
pedestrian  are  about  to  cross  a  railroad  crossing,  the  railway 
company  has  the  superior  right  of  way.  The  railway  company 
had  the  rigbt,  and  it  was  its  duty  to  give  signals  or  warnings 
to  pedestrians  and  to  this  plaintiff,  who  were  about  to  cross  over 
its  tracks,  and  it  was  the  duty  at  this  time  when  the  plaintiff 
was  about  to  cross  over  the  track  of  the  railway  company  to 
give  signals  and  warnings  of  the  danger  from  approaching  trains 
or  engines,  which,  as  already  stated,  should  be  observed  by  the 
plaintiff. 


ASSAULT   AND    BATTERY.  1147 

5.  Same — Bight  and  duty  of  flagman  and  responsibility  of  rail- 
way for  his  acts.  It  is  the  law  also,  gentlemen,  that  the  flagman 
or  servant  may  use  such  reasonable  means  and  force  as  may  be 
reasonably  necessary  under  the  circumstances  to  warn  and  pre- 
vent persons — and  such  was  the  right  and  duty  of  the  flagman 
as  to  the  plaintiff — from  crossing  over  the  tracks  of  the  defend- 
ant company  at  the  time  of  approaching  engines  and  trains  at 
such  crossings,  to  prevent  injury  to  them,  or  to  this  plaintiff, 
therefrom;  and  there  can  be  no  liability  for  injury  on  the  part 
of  the  railway  company  unless  more  force  than  was  reasonably 
necessary  was  used  in  giving  the  warning  or  in  preventing 
persons  from  crossing  the  track  at  the  time  of  the  approaching 
train. 

The  railway  company  is  responsible  for  any  injury  caused  to 
any  person  by  such  flagman,  and  would  be  in  this  case  respon- 
sible to  the  plaintiff,  if  the  servant  uses  more  force  than  was 
reasonably  necessary,  considering  all  the  circumstances  at  the 
time,  to  warn  and  keep  persons  from  approaching  such  crossing. 

6.  Assault  and  battery  may  be  negligently  committed.  An 
assault  and  battery,  as  before  stated,  may  be  intentional,  that  is, 
it  may  be  intentionally  o~  willfully  committed,  or  it  may  be  the 
result  of  negligence.2  That  is,  if  the  flagman  of  the  defendant 
failed  to  observe  ordinary  care  in  the  performance  of  his  duties 
in  warning  and  keeping  persons  from  the  tracks,  such  care  as 
persons  engaged  in  that  kind  of  work  ordinarily  exercise  under 
similar  circumstances.  If  he  was  guilty  of  culpable  negligence 
in  handling  the  flag  staff,  which  was  the  proximate  cause  of 
the  injury,  the  defendant  would  be  liable  in  such  case;  that  is 
the  question  for  the  jury  to  determine.3 

7.  Proximate  cause.  Proximate  cause  is  the  immediate,  effi- 
cient cause,  the  act  which  caused  the  injury  to  the  plaintiff,  the 
act  which  without  the  intervention  of  any  other  unforeseen 
cause  produces  the  injury.  This  doctrine,  gentlemen,  is  to  be 
considered  by  you  only  in  the  event  that  you  conclude  that  the 
act  of  the  flagman  was  not  intentional  and  willful.  The  jury 
in  such  ease  will  determine  whether  it  was  the  conduct  of  plain- 
tiff or  of  the  flagman  which  caused  the  injury. 


1148  INSTRUCTIONS  TO  JURY. 

8.  Direction  as  to  verdict  for  plaintiff.  If  the  jury  find  that 
A.,  defendant's  servant,  while  in  the  line  of  duty,  intentionally 
and  willfully  struck  the  plaintiff,  or  that  he  used  more  force 
than  was  reasonably  necessary  under  the  circumstances  to  pro- 
tect plaintiff  from  death  or  great  bodily  injury  from  approach- 
ing trains,  and  injured  him,  your  verdict  in  such  case  should  be 
for  the  plaintiff. 

9.  Measure  of  damages.  If  you  should  find  in  favor  of  the 
plaintiff,  you  should  award  him  such  compensation  by  way  of 
damages  as  you  in  your  judgment  deem  proper,  considering  the 
nature  of  the  injury,  his  pain  and  suffering,  if  any.  If  the  jury 
should  find  that  the  flagman  was  actuated  by  malice,  then  it  may 
go  beyond  the  rule  of  mere  compensation  and  award  exemplary 
or  punitive  damages ;  and  in  such  case  you  may  in  your  estimate 
of  punitive  damages  take  into  consideration  and  include  reason- 
able fees  of  counsel  employed  to  prosecute  the  action.  Exem- 
plary or  punitive  damages  are  assessed  in  cases  only  where  the 
act  is  maliciously  done ;  not  to  punish,  but  merely  as  an  example. 
Malice  is  not  necessarily  ill  wrill  toward  a  person,  but  is  indica- 
tive of  an  intentional  or  willful  disregard  of  the  rights  of 
another. 

10.  When  verdict  may  be  for  defendant.  If,  however,  the  jury 
should  find  that  the  injury  was  not  intentionally  and  willfully 
committed  by  defendant's  servant,  but  on  the  other  hand,  that 
he  used  only  such  force  or  adopted  only  such  means  in  the  per- 
formance of  his  duties  as  was  reasonably  calculated  and  neces- 
sary under  all  the  circumstances  appearing  in  the  evidence  to 
protect  plaintiff  from  injury,  and  that  the  injury  was  not  the 
result  of  carelessness  or  negligence  on  the  part  of  the  flagman, 
and  you  find  that  it  was  proximately  caused  by  the  conduct  of 
plaintiff  himself  in  disregarding  warnings  and  other  reasonable 
means  adopted  by  the  flagman  to  protect  plaintiff  from  injury 
in  crossing  the  tracks  from  approaching  trains,  then  your  ver- 
dict should  be  for  the  defendant  and  against  the  plaintiff.4 

iFishwick  v.  State,  10  X.  P.   (N.S.)   110;  21  L.  D.  127. 
2  State  v.  Mueller,  6  O.  L.  R.   542,  545;   54  Bull.  94. 


ASSAULT   AND   BATTERY.  1149 

3  Mercer  v.   Corbin,    117   Ind.   450;    Com.   r.    Adams,   114  Mass.   323;    Fisli- 

wick  v.  State,   10  N,  P.    (X.S.)    110. 
* 17.  C,  C.  C.  &  St.  L.  Ry.,  Franklin  Co.  Com.  PI..  Kinkead,  J. 

Sec.  1500.    When  committed  in  self-defense. 

If  you  find  from  the  evidence  that  the  defendant  committed 
an  assault  aud  battery  upon  the  plaintiff,  without  any  just 
cause  or  provocation,  the  defendant  would  be  liable  in  this  action. 

The  act  of  assault  and  battery  may  be  justified  by  evidence 
that  it  was  done  in  self-defense.  One  man  may  protect  his 
person  from  assault  and  injury  by  opposing  force  to  force. 
Nor  is  he  obliged  to  wait  until  he  is  struck;  for,  if  the  weapon 
be  lifted  in  order  to  strike,  or  the  danger  of  any  other  personal 
violence  be  imminent,  the  party  in  such  imminent  danger  may 
protect  himself  by  striking  the  first  blow  and  disarming  his 
assailant.  But  the  opposing  force  or  measure  of  defense  must 
not  be  unreasonably  disproportionate  to  the  exigency  of  the  case, 
for  it  is  not  every  assault  that  will  justify  every  battery.  If  the 
violence  used  was  greater  than  was  necessary  to  repel  the  as- 
sault, the  party  is  himself  guilty. 

If  you  find  from  the  evidence  that  the  plaintiff  made  the  first 
assault  upon  the  defendant  with  his  cane,  the  defendant  would 
have  a  legal  right  to  resist  such  assault  with  such  force  as  was 
necessary  to  protect  himself  from  the  assault  of  the  plaintiff. 
If  you  find  from  the  evidence  that  the  plaintiff,  without  any 
just  cause  or  provocation,  ran  towards  the  defendant  and  struck 
him  with  his  cane,  and  afterwards  raised  his  cane  to  strike  him 
again,  and  that  the  defendant  believed  and  had  reasonable 
grounds  to  believe  that  he  was  in  imminent  danger  of  great 
bodily  harm,  the  defendant  Avould  be  justified  in  using  such  force 
as  he  had  reasonable  ground  to  think  was  necessary  to  protect 
him  from  said  danger,  and  if  he  only  used  such  force,  he  would 
not  be  liable  in  this  action.  But  if  you  find  from  the  evidence 
that  the  plaintiff  did  make  the  first  assault  upon  the  defendant, 
the  defendant  would  not  be  justified  in  using  any  more  force  to 
resist  said  assault  than  he  believed,  and  had  reasonable  grounds 
to  believe,  was  necessary  to  protect  him  from  the  assault  of  the 
plaintiff.     And  if  you  find   that  the  defendant   did  use  more 


1150  INSTRUCTIONS  TO  JURY. 

force  than  he  believed,  and  had  reasonable  grounds  to  believe, 
was  necessary  to  protect  himself  from  the  assault  of  the  plaintiff, 
the  plaintiff  would  be  liable  for  said  excessive  force  and  no  more. 
Now,  gentlemen,  if  you  find  for  the  plaintiff  under  the  evi- 
dence and  instructions  given  you  by  the  court,  it  will  be  your 
duty  to  assess  such  damages  to  which  you  find  the  plaintiff 
is  entitled.1 

i  Voris,  J.,  in  Pford  v.  Pixley,  Summit  County  Common  Pleas.  See  Stew- 
are  v.  State,  1  O.  S.  66;  1  Bishop's  Cr.  Law,  sec.  865;  State  v. 
Burke,  30  la.  331.  Eight  to  repel  attack.  State  v.  Hilbrant,  7  O. 
L.  R.  440.  It  is  erroneous  to  state  that  the  burden  is  on  defendant 
to  show  he  was  in  actual  danger,  that  the  exigency  demanded  self- 
defense,  and  that  he  used  no  more  than  was  actually  necessary, 
because  it  ignores  the  question  of  reasonable  belief  of  danger. 
Aurand  v.  State,  12  C.  C.    (N.S.)    311. 

Sec.  1501.     Force  used  in  repelling  assault,  not  nicely  meas- 
ured. 

The  law  does  not  measure  nicely  the  degree  of  force  which 
may  be  employed  by  a  person  attacked,  and  if  he  uses  more 
force  than  is  necessary,  he  is  not  responsible  for  it  unless  it  is 
so  disproportionate  to  his  apparent  danger  as  to  show  wanton- 
ness, revenge  or  a  malicious  purpose  to  injure  the  assailant.1 
i  Voris,  J.,  in  Pford  v.  Pixley,  Summit  County  Com.  Pleas.  1  0.  S.  66. 

Sec.  1502.     Defense  of  self  and  child — Force  used. 

A  man  may  protect  his  person  and  that  of  his  child  by  oppos- 
ing force  to  force,  nor  is  he  obliged  to  wait  until  he  is  struck, 
or  if  the  weapon  be  lifted  in  order  to  strike,  or  if  the  danger  of 
any  other  personal  violence  be  imminent,  the  party  in  such 
imminent  danger  may  protect  himself  by  striking  the  first  blow 
and  disarming  his  assailant.  But  here  also  the  opposing  force 
or  means  of  defense  must  not  be  unreasonable  or  disproportionate 
to  the  exigency  of  the  case.  No  more  force  is  to  be  used  than 
necessary  to  prevent  the  violence  impending.  Where  one  is 
assailed  he  may  use  such  means  as  are  necessary  to  repel  the 
assailant,  or  to  prevent  his  own  material  injury.1 

i  Nye,  J.,  in  State  v.  Kimball.  "It  is  conceded  that  parent  and  child,  hus- 
band and   wife,  master   and   servant  would  be  excused  should  they 


ASSAULT   ANT)   BATTERY.  1151 

even  kill  an  assailant  in  the  necessari/  defense  of  each  other."  etc. 
Sharp  v.  State,  19  Ohio,  379,  387.  Brothers  may  protect  each 
other  if  not  at  fault.     Smurr  v.  State,   L05  1ml.   125;   Waybrigbt   o. 

State.  56   Ind.    122;    1   Bishop's  Cr.   Law,   sec.  877. 

Sec.  1503.     How  far  one  may  go  in  protection  of  self  or  child. 

If  you  find  from  the  evidence  that  the  defendant  made  the 
first  assault  upon  the  prosecuting  witness  without  just  cause  or 
excuse,  and  shot  him  or  shot  at  him,  such  fact  may  he  consid- 
ered by  you  in  determining  whether  the  defendant  is  guilty  or 
not  guilty,  as  charged  in  the  indictment. 

If  you  find  from  the  evidence  that  the  prosecuting  witness 
made  the  first  assault  upon  the  defendant,  or  attempted  to  make 
an  assault  upon  the  defendant,  and  you  further  find  that  the 
defendant  went  no  further  than  was  necessary  to  protect  himself 
and  child  from  the  assault  or  attempted  assault,  then  the  acts  of 
the  defendant  would  be  justifiable,  and  he  would  not  be  guilty 
of  the  crime  charged. 

If  you  find  from  the  evidence  that  the  prosecuting  witness 
made  the  first  assault  on  the  defendant,  or  attempted  to  make 
an  assault  upon  the  defendant,  and  you  further  find  that  the 
defendant  went  farther  than  was  necessary,  and  from  all  the 
facts  and  circumstances  of  the  case  the  defendant  had  a  right 
to  believe  was  necessary  to  protect  himself  and  child,  the  de- 
fendant would  be  liable  for  such  excessive  force  used. 

It  is  left  for  you  to  say  whether  or  not  the  prosecuting  witness 
did  make  the  first  assault  upon  the  defendant,  and  if  he  did, 
if  the  defendant  went  beyond  what  was  necessary,  and  from  all 
the  circumstances  of  the  case  he  had  a  right  to  believe  Mas 
necessary  to  protect  himself  and  child  from  such  assault.1 
i  Nye,  J.,  in  State  v.  Kimball;    1   Bishop's  Cr.  Law,  sec.  877. 

Sec.  1504.     One  provoking  assault  may   recover   if   he   after- 
wards withdrew. 

One  voluntarily  provoking  an  assault  may  recover  when  his 
adversary  voluntarily  renews  the  conflict.  If  the  plaintiff  vol- 
untarily brought    upon   himself   the   injuries    complained   of,  it 


1152  INSTRUCTIONS  TO   JURY. 

would  seem  absurd  to  say  that  he  should  be  awarded  exemplary 
damages  resulting-  therefrom.  But,  though  he  may  have  pro- 
voked the  battery,  if  he  afterward  withdrew  from  the  conflict, 
the  defendant  could  not  make  the  provocation  an  excuse  for 
following  him  up  and  beating  him  after  he  had  so  withdrawn. 

In  that  case,  if  the  defendant  did  voluntarily  renew  the  con- 
flict, the  plaintiff  in  good  faith  endeavoring  to  avoid  it,  and 
thereupon  wrongfully  beat  and  wounded  the  plaintiff,  and  he 
was  thereby  injured  so  that  you  can  see  that  he  sustained  sub- 
stantial damages  therefrom,  then  the  plaintiff  would  be  entitled 
to  recover  compensatory  damages,  at  least,  for  the  injury  so 
done,  and  if  the  renewal  of  the  assault  was  of  a  character  to 
bring  the  act  within  the  provision  of  exemplary  damages,  it 
would  not  defeat  the  recovery  of  exemplary  damages. 

It  is  the  law  of  Ohio  that  one  who  provokes  a  fight  may  recover 
from  his  antagonist  for  injuries  inflicted  by  the  latter  when  he 
oversteps  what  is  reasonable  under  the  circumstances  and  un- 
necessarily injures  such  person,  but  he  can  not  recover  for  any 
injuries  that  resulted  from  any  reasonable  resistance  to  the 
attack  made  by  the  plaintiff.1 

i  Voris,  J.,  in  Otto  v.  Mills,  Summit  Co.  Com.  PI. 

It  is  said  by  Minshall,  J.,  in  Barholt  v.  Wright,  45  O.  S.  177,  181:  "It  is 
upon  the  mere  principle  of  public  policy  that  one  who  is  the  first 
assailant  in  an  assault  may  recover  of  his  antagonist  for  injuries 
inflicted  by  the  latter,  where  he  oversteps  what  is  reasonably  neces- 
sary to  his  defense,  and  unnecessarily  injures  the  plaintiff,  or  that, 
with  true  want  of  consistency,  permits  each  to  bring  an  action  in 
the  case,  the  assaulted  party  for  the  assault  first  committed  upon 
him,  and  the  assailant  for  the  excess  of  force  used  beyond  what 
was  necessary  for  self-defense."  Dole  v.  Erskine,  35  N.  H.  503; 
Cooley  on  Torts,  165;  Darling  v.  Williams,  35  0.  S.  63;  Gizler  v. 
Witzel,  82  111.  322.  It  would  seem  that  under  the  code  the  right 
of  each  combatant  to  damages  might  have  determined  in  a  measure 
in  the  same  action.     Id.  Swan's  P.  and  P.  259,  n.  a. 

Sec.  1505.     Damages  recoverable  in  civil  action. 

If  you  find  from  the  evidence  that  the  defendant  is  liable  in 
this  case,  the  plaintiff  is  entitled  to  recover  such  damages  as 
compensation  as  you  shall  find  that  he  has  sustained.     And  in 


ASSAULT   AND   BATTERY.  1153 

determining  said  compensation  you  may  consider  the  plaintiff's 
injuries  which  he  has  shown  were  inflicted  hy  the  defendant,  if 
any.  You  may  consider  the  mental  and  physical  pain  and 
suffering  which  the  plaintiff  has  endured,  if  any,  as  a  result  of 
injuries  unlawfully  inflicted  by  the  defendant,  as  I  have  in- 
structed you. 

The  plaintiff  in  this  case  claims  that  he  has  been  to  expense 
in  curing  himself,  and  he  asks  special  damages  on  account  of 
said  expenses  and  care  and  nursing.  Now  I  say  to  you,  if  you 
find  from  the  evidence  in  this  case  that  the  defendant  is  liable, 
the  plaintiff  would  be  entitled  to  recover  such  sum  (not  ex- 
ceeding   dollars)  that  he  has  shown  you  by  the  evidence 

that  he  has  expended  in  that  behalf,  if  any.  He  would  not  be 
entitled  to  recover  any  more  for  any  special  damages  than  he 
has  shown  you  by  the  evidence  to  have  incurred. 

In  assessing  damages,  if  you  find  that  the  plaintiff  is  entitled 
to  recover  in  this  action,  and  you  further  find  that  the  defend- 
ant acted  maliciously,  then  you  have  the  right,  if  you  think 
proper,  to  go  beyond  the  mere  compensation  and  award  exem- 
plary or  punitive  damages,  as  a  punishment  to  the  defendant..1 

The  plaintiff  is  not  entitled  to  this  last  item  of  damages  as  a 
matter  of  right.  It  is  entirely  in  your  discretion  to  allow  it  or 
not  for  the  purpose  of  a  punishment.  If  you  find  that  the  plain- 
tiff acted  maliciously,  you  may  in  your  estimate  of  compensatory 
damages,  take  into  consideration  and  include  reasonable  fees  for 
counsel  employed  by  the  plaintiff  to  prosecute  this  action. 

In  no  event  would  the  plaintiff  be  entitled  to  recover  more 
than  ( dollars)  the  amount  asked  for  in  his  petition.2 

i  Stevenson  v.  Morris,  37  0.  S.  10,  10-20.  Tn  a  tort  which  involves  the 
ingredient  of  fraud,  malice,  or  insult,  exemplary  damages  may  be 
awarded  and  counsel  fees  may  be  allowed.  Roberts  v.  Mason,  10 
O.  S.  277;   Finney  v.  Smith,  31  O.  S.  520. 

2  Voris,  J.,  in  Pford  v.  Pixley,  Summit  County  Common  Pleas. 

Sec.   1506.     Effect   of  conviction  in   criminal  prosecution   on 
civil  damages. 
The  fact  that  the  defendant  lins  been  convicted  and  fined  for 
the  assault  and  battery  is  not  a  bar  to  the  right  of  the  plaintiff 


1154  INSTRUCTIONS  TO   JURY. 

to  recover  compensatory  damages  for  any  injuries  you  may  find 
he  sustained.  Before  adding  any  sum  to  your  verdict  by  way 
of  punishment  and  example,  if  you  find  the  same  to  be  evident 
under  our  instructions  to  you,  it  will  be  well  for  you  to  consider 
the  punishment,  fine  and  cost  adjudged  against  the  defendant 
in  the  criminal  prosecution,  but  this  evidence  can  be  considered 
under  no  circumstances  for  the  purpose  of  lessening  the  com- 
pensation of  the  plaintiff  for  the  injuries  actually  sustained, 
but  may  be  only  for  the  purpose  of  aiding  you  in  determining 
whether  any  other  sum,  and  if  any,  how  much,  should  be  added 
by  way  of  punishment  and  example  in  addition  to  that  awarded 
in  the  criminal  prosecution.1 

i  Voris,  J.,  in  Otto  v.  Mills,  Summit  Co.  Com.  Pleas.  A  civil  remedy  for 
damages  for  injury  is  not  merged  in  an  indictment  for  the  same 
act.     4  0.  376;    19  0.  S.  462;   5  W.  L.  J.  356. 


CHAPTER    LXXIL 
ASSAULT  WITH  INTENT  TO  KILL. 

SEC.  SEC. 

1507.  Assault  with   intent  to  kill —       1508.  Assault  with   intent  to  kill — 
Complete  charge.  Includes  lesser  grades. 

1509.  Assault— Battery— Intert. 

Sec.  1507.     Assault  with  intent  to  kill — Complete  charge,  em- 
bracing : 

a.  Statement  of  case. 

b.  Plea  of  not  guilty — Burden  of  proof. 

c.  Concise  definition  of  reasonable  doubt. 

d.  Credibility  of  witnesses. 

e.  Reputation  of  prosecuting  witness. 

f.  Statute  as  to  crime. 

g.  Jury  not  concerned  tvith  penalty. 
h.  Who  started  the  affray. 

i.  Law  as  to  assault. 

j.  Plea  of  self-defense — Burden  of  proof  and  degree  of  evi- 
dence. 
k.  Malice. 

1.  Intent  to  kill. 
m.  Proof  of  intent  to  kill. 
n.  Direction  to  jury  as  to  finding  and  verdict. 
o.  May  find  defendant  guilty  of  assault. 

a.  Statement  of  case.  Gentlemen  of  the  jury,  the  charge  made 
against  the  defendant  is  an  assault  with  intent  to  kill.  In  the 
language  of  the  indictment  it  is  charged  that  the  defendant  did, 

on  the  ,  unlawfully  make  an  ;iss;mlt  upon  F.  W.  and  did 

unlawfully  strike  and  wound,  with  intent,  him  the  said  F.  W. 
then  and  there  unlawfully,  purposely  and  of  deliberate  and  pre- 
meditated malice,  to  kill. 

1155 


1156  INSTRUCTIONS  TO   JURY. 

b.  Plea  of  not  guilty — Burden  of  proof.  The  defendant  hav- 
ing entered  a  plea  of  not  guilty,  the  burden  is  upon  the  State 
to  prove  all  of  the  essential  elements  of  the  crime  charged  be- 
yond a  reasonable  doubt,  There  is  no  presumption  of  guilt 
from  the  indictment  preferred  against  the  defendant;  on  the 
contrary,  it  is  presumed  that  the  defendant  is  innocent  of  the 
crime  charged  against  him  until  his  guilt  is  established  beyond 
a  reasonable  doubt,  which  is  the  degree  of  proof  required  in 
criminal  cases.  That  is,  before  you  may  find  the  defendant 
guilty,  you  must  be  satisfied  of  the  existence  of  all  the  essential 
elements  of  the  crime  charged  beyond  a  reasonable  doubt.  If 
the  jury  entertain  a  reasonable  doubt  of  the  guilt  of  the  defend- 
ant, then  it  is  your  duty  to  acquit  him. 

c.  Concise  definition  of  reasonable  doubt.  A  reasonable  doubt 
is  an  honest  uncertainty  existing  in  the  minds  of  a  candid,  im- 
partial, diligent  jury  after  a  full  and  careful  consideration  of 
all  the  testimony  with  an  honest  purpose  to  ascertain  the  truth, 
irrespective  of  the  consequences  which  may  follow  the  verdict 
of  the  jury.  It  is  not  a  mere  captious  or  speculative  doubt,  one 
voluntarily  excited  in  the  mind  in  order  to  avoid  the  rendition 
of  a  disagreeable  verdict;  it  is  not  a  doubt  created  by  any  per- 
sonal feeling  of  sympathy,  or  of  opinion  or  policy  not  based 
upon  the  testimony ;  such  a  doubt  is  considered  in  law  as  merely 
a  captious  and  as  an  unreasonable  one.  To  acquit  upon  trivial 
suppositions  and  remote  conjectures  is  a  virtual  violation  of 
your  oath,  and  an  offense  of  great  magnitude  against  the  inter- 
ests of  society,  directly  tending  to  the  disregard  of  the  obligation 
of  the  judicial  oath,  and  countenancing  a  disparagement  of  jus- 
tice and  the  encouragement  of  malefactors. 

On  the  other  hand,  the  jury  ought  not  to  condemn  unless  the 
evidence  removes  from  your  minds  all  reasonable  doubt  as  to 
the  guilt  of  the  accused  and  you  would  venture  to  act  upon  it 
in  a  matter  of  the  highest  concern  or  importance  in  your  own 
interest. 

You  will  be  justified  and  are  required  to  consider  a  reasonable 
doubt  as  existing  if  the  material  facts,  without  which  guilt  can 


ASSAULT   WITH    INTENT    TO   KILL.  1157 

not  be  established,  may  fairly  be  reconciled  with  innocence.  In 
human  affairs  absolute  certainty  is  not  always  attainable ;  from 
the  nature  of  things,  reasonable  certainty  is  all  that  can  be  at- 
tained on  many  subjects.  When  a  full  and  candid  consideration 
of  the  evidence  produces  a  conviction  of  guilt  and  satisfies  the 
mind  to  a  reasonable  certainty,  a  mere  captious,  or  ingenious, 
artificial  doubt  is  of  no  avail ;  if  a  consideration  of  all  the 
evidence  satisfies  you  of  the  defendant's  guilt,  you  will  return 
a  verdict  of  guilty;  if  you  are  not  so  satisfied,  but  a  reasonable 
doubt  or  uncertainty  as  to  the  guilt  of  the  defendant  exists  in 
your  minds,  it  is  your  duty  to  acquit  him. 

Whether  or  not  the  proof  of  the  guilt  is  brought  out  beyond 
a  reasonable  doubt  need  not  be  necessarily  shown  by  the  greater 
number  of  witnesses,  but  may  be  determined  by  the  jury  by  the 
greater  weight  of  credible  testimony  which  convinces  the  jury 
of  guilt  beyond  a  reasonable  doubt. 

d.  Credibility  of  witnesses.  The  jury,  in  considering  the 
credibility  of  witnesses,  should  consider  their  interest  in  the 
liberty  of  the  accused,  their  opportunity  to  see  and  know  the 
facts,  the  consistency  of  their  testimony  with  all  the  facts  and 
circumstances  appearing  in  the  evidence ;  and  if  your  judgment 
so  demands,  you  may  conclude  that  the  guilt  of  the  defendant 
is  established  beyond  a  reasonable  doubt,  notwithstanding  a  less 
number  of  witnesses  may  have  given  testimony  in  behalf  of  the 
State.  The  credibility  of  the  witnesses,  as  I  say,  gentlemen,  is 
entirely  within  your  discretion. 

You  may  give  them  such  credit  as  you,  in  your  best  judgment, 
deem  proper,  considering  all  of  the  circumstances  appearing  in 
this  case.  A  court  may  call  your  attention  to  some  of  the  gen- 
eral things  that  may  be  considered.  I  have  mentioned  a  few : 
that  is,  the  interest  which  any  one  may  have,  the  interest  which 
the  defendant  may  have  in  his  liberty,  the  interest  which  any 
one  may  have  who  has  testified  in  his  behalf,  in  his  liberty,  the 
question  whether  or  not  the  persons  who  have  testified  on 
behalf  of  the  State  are  doing  it  with  the  sole  purpose  and  motive 
of  a  public  duty,  or  whether  there  is  any  revenge  or  malice  or 


1158  INSTRUCTIONS  TO  JURY. 

spite  work;  you  may  consider  all  those  matters,  or  anything 
that  occurs  to  you  that  ought  to  be  considered  in  determining 
the  credibility  of  the  witnesses  as  applied  to  the  evidence  in 
this  case. 

e.  Reputation  of  prosecuting  witness.  Evidence  has  been  in- 
troduced as  to  the  reputation  of  the  prosecuting  witness,  W.,  for 
peace  and  quiet,  the  object  of  which  is  to  reflect  upon  the  ques- 
tion of  W.'s  having  attacked  the  defendant;  all  the  court 
need  to  say  is  that  you  will  give,  weigh  and  consider  that  testi- 
mony, and  give  it  such  weight  as  you,  in  your  best  judgment, 
deem  proper. 

f.  Statute  as  to  crime.  The  statute  relative  to  this  crime  is  as 
follows:  "Whoever  assaults  another  with  intent  to  kill  shall  be 
imprisoned  in  the  penitentiary,"  and  so  forth. 

g.  Jury  not  concerned  with  penalty.  Now,  gentlemen,  you 
have  nothing  whatever  to  do  with  the  penalty  in  this  case ;  you 
should  be  true  to  your  oaths  and  absolutely  banish  the  question 
of  consequences  and  penalty  from  your  minds  while  you  are 
considering  this  verdict. 

There  is  no  higher  calling,  gentlemen  of  the  jury,  than  for 
twelve  men  to  go  into  the  box  and  consider  and  weigh  the 
evidence  and  know  no  person  on  earth  excepting  to  do  your  duty. 

Counsel  have,  in  their  argument,  referred  to  your  sending  this 
defendant  to  the  penitentiary  by  your  verdict.  Now,  that  is  not 
proper.  It  is  not  proper  for  you  to  consider.  I  mention  that  to 
you  because  I  read  you  the  statute  and  I  want  you  to  bear  it 
in  mind. 

h.  YSho  started  the  affray.  In  deciding  the  question  presented 
by  the  indictment  in  this  case,  it  will  be  necessary  for  you  to 
determine  who  started  this  affray,  whether  it  was  the  defendant 
or  whether  it  was  the  prosecuting  witness,  W.  It  is  claimed  on 
behalf  of  the  State  that  the  defendant  made  the  assault  upon  W. ; 
that  is,  the  first  assault,  and  that  the  latter — W. —  made  no  as- 
sault upon  the  defendant  at  all,  and  that  all  that  W.  did  was 
merely  to  defend  himself. 

On  the  other  hand,  it  is  claimed  by  the  defendant  that  W. 
made  the  first  assault  upon  him,  that  is,  the  defendant,  and  that 


ASSAULT    WITH    INTENT    TO    KILL.  1159 

he  struck  "W. — that  is,  the  defendant  struck  W. — merely  to  repel 
an  attack  made  upon  him  by  the  prosecuting  witness,  W. 

i.  Law  as  to  an  assault.  The  jury  are  the  sole  judges  of  the 
facts  in  this  case.  To  enable  you  to  decide  between  the  two 
claims  of  the  parties — the  State  and  the  defendant — the  court 
instructs  you  as  to  the  law  applicable  thereto.  The  law  is  that 
whoever  assaults  another  in  a  menacing  manner  is  guilty  of 
what  is  termed  in  law  a  simple  assault.  To  be  guilty  of  a  mere 
assault  upon  another,  it  is  not  essential  that  the  one  making  it 
should  actually  strike  the  person,  it  being  sufficient  merely  that 
the  one  making  the  assault  should  approach  another,  and  in  a 
menacing  or  threatening  manner.  Mere  words  or  threatening 
language  will  not  alone  constitute  an  assault,  but  threatening 
language  accompanied  by  menacing  conduct  or  words  is  sufficient 
in  law  and  constitute  an  assault.  Now,  if  the  jury  believe  or 
should  find  from  the  evidence  that  the  defendant  here  by  his 
own  conduct  did  make  an  assault,  in  the  manner  and  according 
to  the  law  as  I  have  defined  it  to  you,  upon  the  prosecuting  wit- 
ness, W.,  and  that  that  assault  was  made  in  a  menacing  manner, 
and  that  the  prosecuting  witness,  W.,  did  no  more  than  to  use 
such  reasonable  means  as  were  reasonably  necessary  to  protect 
himself,  and  that  the  defendant,  without  adequate  cause  and  un- 
necessarily, hit  or  struck  W.,  then  you  would  be  warranted  in 
finding  the  defendant  guilty  of  an  assault.  And  if  you  should 
find,  or  if  you  should  believe  that  he  is  guilty  of  assault,  it  will 
then  be  necessary  for  you  to  further  consider  and  determine 
with  what  intent  the  defendant  committed  the  act,  as  to  which 
the  court  will  instruct  you  directly. 

If,  however,  you  should  find  that  the  defendant  did  not  make 
the  first  assault  upon  W.  and  that  he  did  no  more  than  use  lan- 
guage which  provoked  W.,  and  that  W.  made  the  first  assault 
upon  the  defendant,  and  that  defendant  struck  W.  to  defend 
himself  against  attack,  and  that  he  used  no  more  force  and 
violence  than  was  reasonably  necessary  to  defend  himself,  then 
your  verdict  should  be  one  of  acquittal. 

j.  Pica  of  self-defense— Burden  of  proof  and  degree  of  evi- 
dence.    The  defendant,  having  invoked  the  plea  in  his  behalf 


1160  INSTRUCTIONS  TO   JURY. 

that  what  he  did  was  done  by  him  in  self-defense,  the  jury  are 
instructed  that  the  law  places  the  burden  of  proving  this  plea 
of  self-defense  upon  the  defendant  himself,  and  the  degree  of 
evidence  necessary  to  establish  this  defense  is  different  from 
that  required  to  establish  his  guilt ;  that  is,  the  defendant  must 
establish  this  plea  of  self-defense  by  what  is  known  and  termed 
in  law  as  a  preponderance  of  evidence.  And  a  preponderance 
of  evidence,  in  plain  language,  simply  means  the  greater  weight 
of  credible  testimony,  not  necessarily  the  greater  number  of 
witnesses,  but  the  greater  weight  of  credible  testimony,  viewing 
the  testimony  according  to  the  rules  and  tests  that  the  court 
has  already  suggested. 

If  you  should  reach  the  conclusion  in  your  minds  that  the 
defendant  did  not  act  in  self-defense,  but  you  should  be  satisfied 
beyond  a  reasonable  doubt  that  the  defendant  was  guilty  of  an 
assault,  then  it  will  be  your  duty  to  inquire  and  determine 
whether  or  not  the  defendant  made  the  assault  with  intent  to 
kill. 

k.  Malice.  Malice  is  an  essential  ingredient  of  the  crime  of 
assault  with  intent  to  kill,  which  is  the  charge  here.  In 
law  the  intent  to  kill  involved  in  this  crime  must  be  a  malicious 
intent  to  kill.  If  you  should  find  that  the  defendant  did  commit 
an  assault,  then  you  are  instructed  that  it  is  your  duty  to  look 
and  determine  whether  or  not  the  defendant  made  the  assault 
upon  W.  with  the  malicious  intent  then  and  there  to  kill  him. 

Malice,  in  law,  does  not  necessarily  mean  personal  ill  will  or 
hatred  by  one  towards  an  individual,  although  that  may  enter 
into  the  consideration  of  what  constitutes  malice  to  some  extent, 
but  malice,  in  law,  is  used  to  designate  that  state  of  mind  which 
prompts  a  conscious  violation  of  the  law  to  the  prejudice  of 
another.  It  is  indicative  of  a  mind  void  of  all  social  duties  and 
obligations  imposed  by  law  upon  the  person  charged  with  crime 
by  virtue  of  his  social  relations. 

Before  you  can  make  any  finding  that  the  defendant  com- 
mitted the  assault  as  charged  with  a  malicious  intent   to  kill 


ASSAULT    WITH    INTENT    TO    KILL.  1161 

W.,  you  must  find  from  the  evidence  that  the  defendant  was 
actuated  by  malicious  intent. 

1.  Intent  to  kill.  The  intent  to  kill  involved  in  the  crime 
charged  here  is  what  is  termed  in  law  a  specific  intent.  It  is 
distinguishable  and  materially  different  from  the  criminal  intent 
present  in  a  mere  assault  and  battery,  which  is  also  involved  in 
this  charge  and  charged  by  the  indictment.  The  intent  in  the 
crime  of  assault  and  battery  merely — that  is,  in  mere  assault 
and  battery — may  be  inferred  by  and  charged  from  the  wrong- 
ful act  of  assaulting  and  beating  another.  An  intent  in  such  case 
is  au  intent  to  cause  mere  bodily  injury.  The  intent  to  kill 
involved  in  the  crime  of  assault  with  intent  to  kill  means  that 
the  person  charged  with  the  crime  must  have  intended  to  kill 
the  person  assaulted;  the  intent  to  kill  must  be  a  malicious 
intent  to  take  the  life  of  the  person  assaulted,  malice,  as  already 
stated,  not  necessarily  meaning  ill  will,  but  a  wicked  or  depraved 
heart  fatally  bent  on  mischief. 

It  is  simply  your  dut.y,  gentlemen,  to  find  and  determine,  as 
you  would  determine  any  other  fact  in  this  case,  whether  the 
defendant  committed  the  assault  with  intent  to  kill  W.  and  with 
malice  as  these  terms  have  been  explained  to  you.  Being  a 
question  of  fact,  it  must  be  determined  by  you  from  all  the  facts 
and  circumstances  as  shown  by  the  evidence  and  beyond  a  reason- 
able doubt. 

m.  Proof  of  intent  to  kill.  It  is  not  always  possible  to  prove 
an  intent  to  kill,  nor  is  it  essential  in  law  that  it  should  be  estab- 
lished by  what  is  known  as  direct  testimony.  It  may  be  inferred 
from  any  evidence  if  the  jury  are  satisfied  that  any  facts  have 
been  established  from  which  intent  may  reasonably  be  inferred. 
In  arriving  at  a  conclusion  of  the  existence  or  non-existence  of 
the  intent  to  kill,  the  jury  may  consider  any  declarations  of  the 
defendant,  if  any  you  find  that  he  made;  you  may  consider  the 
nature  and  character  of  the  assault,  if  you  find  that  he  made  one, 
without  just  excuse  or  justification ;  whether  any  means  or 
methods  were  used  which  were,  in  your  judgment,  reasonably 
calculated  to  cause  death.     If  the  jury  should  be  of  the  opinion 


1162 


INSTRUCTIONS  TO  JURY. 


that  the  elub  used  by  defendant  in  striking  W.  was  calculated 
to  cause  the  death  of  W.,  then  the  jury  may  infer  an  intent  to 
kill;  and  if  you  find  beyond  a  reasonable  doubt  that  the  defend- 
ant did  assault  W.  and  that  he  did  it  with  an  intent  to  kill,  then 
it  is  your  duty  to  render  a  verdict  of  guilty  of  assault  with  intent 
to  kill. 

n.  Direction  to  jury  as  to  finding  and  verdict.  But  if,  after  a 
consideration  of  all  the  evidence,  there  remains  in  your  minds 
a  reasonable  doubt  as  to  whether  defendant  did  assault  W.,  or 
whether,  though  he  did  assault  him,  he  actually  intended  to  kill 
W.,  then  it  would  be  your  duty  to  acquit  him  of  the  crime  of 
assault  with  intent  to  kill.  But  if  you  should  be  of  the  opinion 
that  the  defendant  did  not  commit  the  assault  with  intent  to 
kill,  it  will,  nevertheless,  be  your  duty  to  consider  and  determine 
whether  or  not  he  is  guilty  of  an  assault  and  battery.  The  in- 
dictment charges  that  the  defendant  unlawfully  assaulted  and 
beat  the  said  W.  When  a  person  is  charged  with  an  assault  with 
intent  to  kill  and  the  jury  entertains  a  reasonable  doubt  of  his 
guilt,  they  may  acquit  him  of  the  assault  with  intent  to  kill  and 
may  find  him  guilty  of  assault  and  battery. 

o.  May  find  defendant  guilty  of  assault.  Any  unlawful  beat- 
ing or  other  wrongful  physical  violence  inflicted  on  a  human 
being  without  his  or  her  consent  and  without  excuse  or  cause 
constitutes  an  assault  and  battery.  An  intent  to  assault  and 
injure  a  person  may  be  inferred,  as  already  stated,  from  an 
unlawful  assault  and  battery,  should  you  find  one  to  have  been 
committed  by  the  defendant  beyond  a  reasonable  doubt. 

The  crime  of  assault  with  intent  to  kill  embraces  within  that 
charge  not  only  assault  and  battery,  but  a  simple  assault ;  and 
the  court  has  defined  those  terms  to  you,  all  of  them ;  and  you 
may  acquit  him  of  assault  with  intent  to  kill  and  find  him  guilty 
of  assault,  and  battery,  or  you  may  acquit  him  of  assault  and 
battery  and  find  him  guilty  of  assault,  according  to  your  own 
judgment,  applying  the  law  as  the  court  has  endeavored  to  give 
it  to  you.1 

i  State   v.  Snyder,  Frank.  Co.  Com.  PI.,  Kinkead,  J. 


ASSAULT    WITH    INTENT    TO    KILL.  1163 

Sec.  1508.     Assault  with  intent  to  kill — Includes  lesser  grades. 

■ '  If  you  should  find  from  the  evidence  that  had  death  resulted 
from  the  assault,  the  killing  would  have  heen  manslaughter  only, 
then  you  should  find  him,  the  defendant,  guilty  of  assault  and 
battery  only,  and  not  guilty  of  assault  with  intent  to  kill.  But 
if  you  should  find  that  such  killing,  had  death  resulted,  would 
have  been  murder  in  the  first  degree  or  murder  in  the  second 
degree,  then  you  should  find  the  defendant  guilty  as  charged  in 
the  indictment. ' '  * 
i  State  v.  Stout.  49  0.   S.  270. 

Sec.  1509.    Assault — Battery — Intent. 

"You  will  inquire  whether  there  was  an  assault  with  intent 
to  murder.  An  assault  is  an  attempt  or  offer,  with  force  and 
violence,  to  do  some  corporal  hurt  to  another.  If  the  attempt 
or  offer  be  carried  into  effect,  there  is  more  than  an  assault ; 
there,  is  battery  also,  and  the  only  question  is  as  to  the  intent. 
Was  it  to  commit  murder?  In  other  words,  if  M.  had  been 
killed,  would  the  prisoner  be  guilty  of  murder?  If  they  wrere 
attempting  to  commit  a  burglary,  it  would  have  been  murder  in 
the  first  degree.  If  not,  and  they  had  yet  killed  him  maliciously, 
it  wyould  have  been  murder  in  the  second  degree.  Either  will 
satisfy  the  statute.  But  if  you  think  the  killing  would  have 
been  manslaughter  only,  you  can  not  convict.  And  this  must  be 
the  case,  if  you  believe,  either  that  there  was  no  intention  to 
kill,  or,  if  an  intention,  that  it  was  the  effect  of  passions,  roused 
in  a  sudden  quarrel,  and  that  there  was  no  malice,  that  is,  no 
culpable  disregard  of  another's  rights."  ] 

i  Timothy  Walker   in  Ohio  v.   Shields,    1  W.  L.  J.   118,  quoted   in  State   ?;. 
Stout,  270. 


CHAPTER    LXXIII. 
ATTORNEYS. 


1510.  Breach    of     contract    of    em-        1512.  Action    to    recover    fees,    gov- 

ployment   —   Contingent  erned  by  same  principles 

fee    in    collection    of    ac-  as  other  employment, 

count.  1513.  Quantum     meruit,     when     no 

1511.  Presumption     from      employ-  special   contract. 

ment  of  an  agreement  to  1514.  Facts  to  be  considered  in  de- 
pay  reasonable  compen-  termining  value  of  serv- 
sation.  ices. 

1515.  Expert  opinion  as  to  value  of 
services. 

Sec.  1510.     Breach   of   contract    of   employment — Contingent 
fee  in  collection  of  account. 

The  jury  is  instructed  that  where  an  attorney  at  law  accepts 
an  account  for  collection  with  an  agreement  that  he  is  to  have 
as  compensation  a  certain  per  cent,  of  the  amount  collected,  and 
the  client,  without  sufficient  cause,  and  without  giving  the  attor- 
ney a  reasonable  time  to  make  collection,  wrongfully  takes  the 
account  out  of  the  hands  of  the  attorney,  the  latter  is  entitled  in 
such  case  to  recover  damages  for  such  breach  of  contract,  pro- 
vided it  is  made  to  appear  that  the  claim  so  placed  in  his  hands 
was  valid  and  collectible. 

In  such  case  the  measure  of  damages  is  the  amount  of  com- 
pensation stipulated  for  the  contract,  which,  however,  is  not 
dependent  upon  what  was  finally  collected  on  the  account  by 
another.1 

If,  therefore,  the  jury  finds,  etc. 

iScheinesohn  v.  Lemonek,  84  0.  S.   424;   Am.   Ann.  Cas.   1012  C.  737,  and 
note. 

Sec.  1511.     Presumption  from  employment  of  an  agreement  to 
pay  reasonable  compensation. 
The  jury  is  instructed  that  when  one  enters  into  a  contract 
to  employ  an  attorney  in  a  particular  service,  it  is  presumed 
1164 


ATTORNEYS.  1165 

that  such  person  undertakes  and  agrees  to  pay  such  attorney  for 
his  services  such  an  amount  as  under  all  the  circumstances  they 
are  reasonably  worth.1 
Walnut  Hills  S.  &c.  Co.  v.  Haley,  S  X.  P.  557. 

Sec.  1512.    Action  to  recover  fees,  governed  by  same  princi- 
ples as  other  employments. 

The  jury  is  instructed  that  an  action  brought  by  an  attorney 
at  law  to  recover  for  professional  services  depends  upon  the 
same  principles,  and  is  governed  by  the  same  rules  that  apply  to 
other  actions  brought  to  recover  for  services  rendered  in  any 
lawful  employment.1 
iKittridge  v.   Armstrong,  28  W.  L.  Bull.  240. 

Sec.  1513.     Quantum  meruit  when  no  special  contract. 

The  jury  is  instructed  that  when  an  attorney  at  law  seeks  by 
action  to  recover  for  services  rendered  by  him  to  a  client,  and 
no  special  contract  is  made  between  the  parties  concerning  the 
compensation  which  the  attorney  shall  receive  for  his  services, 
the  rule  of  law  is  that  such  attorney,  the  plaintiff  herein,  is 
entitled  to  recover  upon  the  quantum  meruit,  that  is,  what  his 
services  are  reasonably  worth,  so  much  as  the  services  may  be 
worth,  so  much  the  services  deserve. 

The   burden   rests  upon   the  plaintiff  to   prove  the   work  or 
service  rendered  by  him  for  the  defendant,  as  well  as  what  the 
same  was  reasonably  worth.1 
i  Kittridge  v.  Armstrong,  28   W.   L.  Bull.   249. 

Sec.  1514.     Facts   to   be  considered  in  determining  value  of 
services. 

Tn  estimating  and  determining  the  reasonable  value  of  the 
services  rendered  by  plaintiff,  the  jury  should  take  into  consid- 
eration the  nature  and  importance  of  the  controversy  in  which 
Hie  service  was  rendered,  the  novelty,  the  intricacy  and  doubt- 
fulness of  the  questions  involved,  the  amount  in  controversy,  the 


1166  INSTRUCTIONS  TO  JURY. 

nature  of  the  services  required  of  the  lawyers,  their  standing  in 
the  profession  for  learning  and  skill  and  proficiency  in  their 
employment,  together  with  the  result  accomplished.  The  reason- 
ableness of  the  compensation  is  to  be  determined  by  the  jury 
from  the  evidence  like  any  other  controverted  fact,  and  not 
according  to  the  personal  views  of  jurors.  The  jury  must  con- 
sider and  be  guided  only  by  the  evidence.1 
iKittridge  v.  Armstrong,  28  W.  L.  Bull.  240,  Hunt,  J. 

Sec.  1515.    Expert  opinion  as  to  value  of  services. 

The  law  permits  persons  familiar  with  the  value  of  the  serv- 
ices of  a  lawyer  to  give  an  opinion  as  to  what  they  are  worth, 
since  no  market  value  can  be  placed  on  such  services.  Experts 
or  witnesses  shown  to  be  skilled,  learned  or  experienced  in  the 
subject  of  controversy  in  an  action  may  be  permitted  to  give 
their  opinion  upon  a  given  state  of  facts,  that  is,  those  claimed 
to  have  been  proven  by  the  evidence  in  an  action. 

The  evidence  of  experts  as  to  the  value  of  professional  services 
does  not  differ  in  principle  from  such  evidence  as  to  the  value 
of  any  other  labor  or  services  rendered  in  any  line  of  labor, 
trade  or  business.  The  legitimate  purpose  thereof  is  to  give  aid 
and  enlightenment  to  the  jury  concerning  the  value  of  services 
in  controversy.  It  is  the  province  and  duty  of  the  jury  to  weigh 
and  consider  the  evidence  of  the  attorneys  who  have  given  tes- 
timony as  to  the  value  of  the  services,  together  with  all  the  other 
evidence  touching  their  nature,  the  time  occupied  and  the  at- 
tending circumstances. 

The  jury  will  keep  in  mind  the  distinction  between  original 
evidence  and  opinion  evidence  given  by  the  attorneys,  it  being 
within  your  exclusive  province  to  give  such  weight  to  the  opin- 
ions concerning  the  value  of  the  services  by  the  several  witnesses 
as  you,  in  your  judgment,  deem  proper.1 
a  See  Kittridge  v.  Armstrong,  28  W.  L.  Bull.  249. 


CHAPTER   LXXIV. 
AUTOMOBILES— INJURY  BY. 


(See  Bailments.) 


1516.  Relation  of  employer,  or  own- 

er, and  chauffeur. 

1517.  Liability  of  owner   who   hires 

auto  with  his  licensed 
chauffeur  to  another,  to 
be  used  for  a  definite 
time,  and  for  specified 
fee. 

1518.  Master  loaning  servant  to  an- 

other becomes  liable  for 
his  acts. 

1519.  Liability     of     garage     owner 

who  hires  out  automo- 
bile with  driver,  where 
hirer  exercises  no  con- 
trol over  driver  except 
to  give  directions  as  to 
routes. 

1520.  Duty  of  one  operating   sight- 

seeing automobile. 

1521.  Liability  of  owner  for  injury 

from  acts  of  driver  al- 
leged to  have  taken  car 
under  express  or  implied 
authority  for  taxi-serv- 
ice, denied  by  owner. 

1.  Statement   of  questions. 

2.  Ownership  not  evidence  of 

agency — Burden  of  prov- 
ing agency. 

3.  Test    of    master's    liability 

— Was  servant  in  the 
course  or  scope  of  em- 
ployment. 

4.  Was  drunk. 


SEC. 

1522.  Ownership     of    machine      and 

operation  thereof  by  serv- 
ant employed  for  that 
purpose  create  prima 
facie  liability — But  un- 
der general  denial  the 
burden  is  on  plaintiff  to 
prove  that  such  servant 
Avas  engaged  in  business 
or  service   of  master. 

1523.  Injury  to  person   while  cross- 

ing street  from  collision 
with  automobile  running 
at  high  rate  of  speed — 
Contributory  negligence 
of  plaintiff — A  complete 
charge. 

1.  Statement   of    questions. 

2.  Burden     on     plaintiff     to 

prove  negligence  of  de- 
fendant; on  defendant  to 
prove  plaintiff's  con- 
tributory   negligence. 

3.  Degree  of   care,   and    cred- 

ibility of  witnesses. 

4.  Negligence    as    applied    to 

drivers  of  automobiles  in 
streets  and  to  travelers 
therein,  defined. 

5.  Relative   rights  and   duties 

of  drivers  of  automo- 
biles and  pedestrians  in 
streets. 


1167 


1168 


INSTRUCTIONS  TO  JURY. 


SEC.  SEC. 

6.  Duty  of  driver  of  autoino-       1535. 
bile    to    negligent    pedes- 
trian. 

8.  Was  negligence  of  defend-        1536. 

ant  proximate  cause  of 
injury — Proximate  cause 
denned. 

9.  Concurrent   negligence.  1537. 

1524.  Driver  must  anticipate  meet- 

ing pedestrians  at  street 
crossing. 

1525.  Duty  of  driver  to  give  signals        1538. 

at  street  crossing,  and  to 
adopt  other   precautions. 

1526.  Duty  of  drivers  as  to  speed — 

The   statute. 

1527.  Same — Violation  of  statute —       1539. 

Prima  facie  negligence — 
Not  conclusive. 

1528.  Duty    of    drivers    in    meeting- 

others  driving  in  streets 

— Reasonable     lookout —       1540. 

Control  of  machine. 

1529.  Driver,  keeping  lookout,   hav-        1541. 

ing  car  under  reasonable 
control,  may  assume  pe- 
destrian    will     not     sud-        1542. 
denly  turn  backward. 

1530.  Pedestrian  going  unexpectedly 

in  front  of  auto. 

1531.  Warnings      given      pedestrian 

causing   bewilderment. 

1532.  Driver  running  excessive  rate 

of  speed  approaching 
crossing — Gives  no  signal 
— Pedestrian  placed  in 
sudden  danger — Not  neg- 
ligent if  injudicious 
choice  made  between  haz- 
ards. 

1533.  Automobile,    lawful    means   of 

conveyance — Equality  of 
right  between  driver  and 
pedestrian. 

1534.  Correlative    duties    of    driver 

of  auto  and  pedestrian. 


Ordinance  as  to  passing  ve- 
hicles and  carrying 
lights — How     considered. 

Operator  of  auto  may  assume 
persons  at  street  cross- 
ing will  exercise  ordi- 
nary care. 

Driver  of  auto  and  other  ve- 
hicle both  negligent — 
Concurrent  negligence — 
Proximate    cause. 

Whether  driver  of  auto  act- 
ing as  agent  or  servant 
of  owner — Or  whether 
person  hired  it  for  him- 
self alone. 

Equality  of  right  of  street 
railway  and  driver  of 
automobile — Relative  du- 
ties of  each — Familiarity 
of   driver    with   crossing. 

Duty  of  driver  of  auto  at 
railroad  grade  crossing. 

Driver  of  automobile  placed 
in  sudden  peril  through 
neglect  of  another. 

Injury  by  collision  between 
two  automobiles — Plaint- 
iff charges  excessive 
speed  causing  injury  to 
her  machine — Defendant 
counterclaims  for  injury 
to  his  machine  by  same 
collision. 

1.  Statement     of     claims      of 

plaintiff  and  defendant. 

2.  Burden  of  proof. 

3.  Credibility    of   witnesses — 

Testimony  and  evidence 
distinguished  — Ultimate 
fact  to  be  found. 

4.  Negligence   of  party  to  be 

determined  —  Negligence 
in  the  use  of  automo- 
biles in  city. 


AUTOMOBILES INJURY    BY. 


1169 


5.  Duty      of      driver     in     ap- 

proaching street  intersec- 
tion. 

6.  Driver    of    autos    required 

to  observe  law  of  road. 

7.  Duty  as  to  speed. 

8.  Both   parties   claiming   re- 

lief, but  one  can  recover. 

9.  Minor     son    of    defendant 

driving — His  authority 
— Liability  of  father  for 
negligence  of  son. 

10.  Same   continued — Automo- 

bile, though  not  danger- 
ous instrumentality,  still 
may  become  so,  if  reck- 
lessly driven — Effect  of 
legislative  regulations. 

11.  Same     continued — Implied 

authority  by  father  to 
son  to  use  and  drive 
auto. 

12.  Same    continued — Jury    to 

determine  whether  negli- 
gence of  either  plaintiff 
or  defendant  caused  col- 
lision. 

13.  Same    continued — -Contrib- 

utory negligence  and  con- 
current negligence  as 
applied  to  case. 

14.  Precautionary     instruction 

as  to  description  of  speed 
by  witnesses. 

15.  Direction  as  to  verdict. 
154.'!.  Injury  to  passenger  in  auto- 
mobile, the  guest  of  hirer 
from  owner,  who  fur- 
nishes chauffeur  to  drive 
— Liability  dependent 
upon  contract  of  hiring, 
jis  well  as  upon  whether 
driver  is  engaged  in  the 
service  and  business  of 
the  owner. 


1.  Under      general      denial 

plaintiff  bound  to  prove 
use  of  machine  by  hirer 
within  bailment  of  hir- 
ing, as  also  that  chauf- 
feur was  engaged  in 
service  and  business  of 
master. 

2.  Credibility   of    witnesses — 

What  to  be  considered — 
^Ien  and  women  on  "joy 
ride,"  using  intoxicating 
liquors. 

3.  Plaintiff  must  show  chauf- 

feur to  have  been  within 
the  business  of  owner. 

4.  Intoxication  of  passengers, 

and  chauffeur — Presence 
of  liquors  in  car  at  time 
of  wreck — Contributory 
negligence  of  plaintiff  in 
use  of  liquors,  so  as  to 
be  unable  to  use  ordi- 
nary care — Circumstan- 
tial evidence — Inferences. 

5.  Evidence     that     chauffeur 

permitted  another  to 
drive  car  at  time  of  in- 
jury, and  as  to  intoxica- 
tion, consisting  of  dec- 
larations as  part  of  res 
gestae. 

6.  Driver  permitting   another 

to  drive  machine  departs 
from  duty  and  sen  ice  of 
master. 

7.  Scope    of    employment    and 

service  of  chauffeur,  to 
be  determined  by  con- 
tract   of   hiring. 

8.  Assessment     of    damages — 

P  a i  r  a  n  d  reasonable 
compensation,  to  hot  h  de- 
fendant   and    plain  till'. 


1170  INSTRUCTIONS  TO   JURY. 

Sec.  1516.     Relation  of  employer,  or  owner  and  chauffeur. 

The  jury  is  instructed  that  the  acts  of  the  chauffeur,  in  operat- 
ing an  automobile,  within  the  authority  of  his  employment,  are 
the  acts  of  a  servant.  The  relation  of  master  and  servant  exists 
between  the  chauffeur  and  his  employer,  and  the  rules  of  law 
applicable  to  that  relation  apply.1 

i  Hannigan   v.   Wright,  5   Pennew.   Del.   537,   540;    Babbitt  Motor  Vehicles, 
sec.  546;  Cunningham  v.  Castle,  111  N.  Y.  Supp.  1057,  1062. 

Sec.  1517.  Liability  of  owner,  who  hires  auto  with  his  licensed 
chauffeur,  to  another  to  be  used  for  definite 
time,  and  for  specified  fee. 

The  jury  is  instructed  that  a  person  [or  corporation]  engaged 
in  the  business  of  letting  out  automobiles  for  hire  has  certain 
obligations  and  duties  which  are  required  of  him  in  law,  and 
which  are  imposed  because  of  the  nature  and  character  of  such 
machines.  The  management  of  an  automobile  should  only  be 
intrusted  with  one  who  is  qualified  by  knowledge  and  experience 
to  properly  run,  manage  and  control  the  same.  The  dangers 
incident  to  their  use  in  the  highways  from  improper  use,  control 
and  management  of  the  same  are  such  that  the  state  has  enacted 
certain  police  regulations  applicable  to  their  use.  The  law  will 
not  permit  such  vehicles  to  be  run  in  the  highways  without  a 
license,  and  not  otherwise,  except  by  a  licensed  chauffeur,  unless 
the  same  be  driven  by  an  owner.  The  danger  of  loss  and  injury 
to  property  as  well  as  of  personal  injury  to  persons  riding  in 
the  machines  as  well  as  those  traveling  in  the  high- 
ways, unless  carefully  and  prudently  managed  and  controlled, 
is  such  as  to  require  the  exercise  of  care  in  their  use  such  as  is 
commensurate  with  the  dangers  incident  to  such  use. 

Where  control  and  management  of  the  machine  is  given  up 
to  a  hirer,  the  owner  is  required  to  furnish  a  competent  driver 
of  the  same.1 

The  jury,  therefore,  is  instructed  that  where  the  owner  of  an 
automobile  lets  or  hires  it  out  to  another,  with  a  licensed  chauf- 


AUTOMOBILES — IX  J  TRY    BY.  1171 

tVur  in  his  employ  in  charge  of  it  under  contract  and  agreement, 
by  the  terms  of  which  the  owner  is  to  receive  a  definite  sum 
for  the  use  of  such  car,  together  with  the  driver  during  the 
period  of  hiring,  such  owner  under  such  contract  of  hiring  is 
responsible  and  liable  under  the  law  for  the  acts  and  conduct 
of  the  chauffeur  in  the  management,  control  and  driving  of  the 
automobile  during  the  period  of  time  covered  by  such  employ- 
ment.2 

i  The  reason  for  the  rule  of  law  above  stated  may  be  omitted  if  thought 
best;  they  are  those,  however,  cited  in  the  authority  below  cited. 

2Shepard  v.  Jacobs,  204  Mass.  110;  26  L.  R.  A.  X.  S.  442:  1.34  Am.  St. 
648;    90  N.  E.   392. 

Sec.  1518.     Master  loaning  servant  to  another  becomes  liable 
for  his  acts. 

The  jury  is  instructed  that  a  master  may  lend  his  servant, 
with  consent  of  the  latter,  to  another  person  for  service  in  the 
business  of  the  other,  and  that  while  engaged  in  the  business  of 
the  other  person  and  in  all  respects  subject  to  his  direction  and 
control,  he  becomes  the  servant  of  the  new  master,  and  this 
master  becomes  liable  for  his  negligence.  In  determining 
whether,  in  a  particular  act,  he  is  the  servant  of  his  original 
master  or  of  the  person  to  whom  he  has  been  furnished,  the 
general  test  is  whether  the  act  is  done  in  business  of  which  the 
person  is  in  control  of  as  a  proprietor,  so  that  he  can  at  any  time 
stop  it  or  continue  it,  and  determine  the  way  in  which  it  shall 
be  done,  not  merely  in  reference  to  the  result  to  be  reached,  but 
in  reference  to  the  method  of  reaching  the  result. 

The  jury  is  instructed  that  while  such  servant  is  engaged  in 
the  business  of  the  one  to  whom  he  has  been  loaned,  and  while 
engaged  in  the  business  of  the  latter  and  if  he  is  in  all  respects 
under  his  direction  and  control,  he  becomes  the  servant  of  the 
new  master,  who  becomes  liable  for  the  negligence  of  the  servant.1 

iShepard   v.  Jacobs,  204  Mass   110;    90   X.     K.    :!!)2;     1.34    Am.    St.    648; 
Sacker  v.  Waddell,  98  Md.  43;   103  Am.  St.  374. 


1172  INSTRUCTIONS  TO   JURY. 

Sec.  1519.     Liability  of  garage  owner  who  hires  out  automo- 
bile with  driver,  where  hirer  exercises  no  control 
over  driver  except  to  give  directions  as  to  route. 
The  jury  is  instructed  that  a  chauffeur  sent  by  the  owner  of  a 
garage  to  operate  an  automobile  leased  for  a  pleasure  ride,  and 
who  obeys  the  directions  of  the  person  hiring  the  car,  and  who 
does  no  more  than  to  follow  and  obey  the  directions  given  by  the 
hirer  as  to  the  routes  or  places  where  the  machine  is  to  be  driven, 
is  the  servant  of  the  owner  of  the  automobile  and  garage  and  not 
of  the  person  hiring  the  same.     Hence  it  follows  that  the  owner 
of  the  automobile  and  garage  is  responsible  and  liable  in  law  for 
any  acts  of  negligence  of  such  servant  or  chauffeur  committed 
by  him  within  the  scope  of  his   employment,   as  well  as   the 
service  of  his  employer  or  master.1 

iGerretson  v.  Rambler  Garage  Co.,  —  Wis.  — ;  136  X.  W.  186:  40  L.  11. 
A.  457. 

Sec.  1520.     Duty  of  one  operating  a  sight-seeing  automobile. 

The  jury  is  instructed  that  one  who  operates  a  sight-seeing 
automobile  over  regular  routes  in  a  city,  which  he  holds  out  to 
the  public  for  common  carriage  of  all  who  may  desire  to  take 
passage  therein,  and  which  lie  invites  the  general  public  to  pat- 
ronize for  hire,  owes  to  the  patrons  or  to  those  becoming  passen- 
gers therein,  the  duty  of  exercising,  in  the  management,  opera- 
tion and  control  of  such  vehicle,  the  highest  degree  of  care  con- 
sistent with  the  proper  and  ordinary  transaction  of  the  business 
so  being  conducted.1 

i  Hinds  v.  Steere,  209  Mass.  442;  95  N.  E.  844;  35  L.  E.  A.  658.  The 
highest  degree  of  care  was  imposed  in  this  case  because  it  was  re- 
garded as  a  common  carrier.  But  the  courts  have  not  extended 
that  measure  of  care  to  ordinary   hiring. 

Sec.  1521.  Liability  of  owner  for  injury  from  acts  of  driver 
alleged  to-  have  taken  car  under  express  or  im- 
plied authority  for  taxi-service,  denied  by  owner. 

1.  Statement  of  questions. 

2.  Oivnership-  not  evidence  of  agency — Burden  of  proving 

agency. 


AUTOMOBILES IX  JURY    BY.  117:5 

3.  Test  of  master's  liability— Was  servant  in  the  course  or 

sccp<  of  (  mploymt  nt  t 

4.  Was  driver  of  auto   within   scope  of  employment    and 

engaged  in  master's  business  at  time  of  injury? 

1.  Statement  of  question.  The  question  for  the  jury  to  deter- 
mine is  whether  L.  had  authority,  either  express  or  implied, 
from  A.  to  take  the  machine  out  and  hire  it  to  C.  during  the 
period  of  time  which  L.  had  it  and  to  drive  it  to  the  place  or 
places  where  it  was  driven.  If  L.  did  have  such  authority,  was 
he  acting  within  the  scope  of  such  express  or  implied  employ- 
ment at  the  time  of  the  injury,  and  was  he  guilty  of  negligence 
which  caused  the  injury? 

2.  Ownership  not  evidence  of  agency — Burden  to  prove 
agency.  Ownership  of  an  automobile  in  and  of  itself  is  not  to 
be  taken  as  prima  facie  evidence  that  one  who  is  driving  it  at  a 
particular  time  is  the  agent  of  the  owner. 

The  fact  that  one  is  shown  to  be  the  owner  of  an  automobile 
which  is  being  driven  by  another  is  not  alone  to  be  considered 
as  evidence  that  the  one  who  is  driving  it  is  an  agent  or  servant 
of  the  owner.1  The  burden  is  upon  one  who  complains  of  injury 
from  being  run  down  by  the  machine  to  show  not  only  the  fact 
that  the  person  driving  the  car  was  the  servant  of  the  owner, 
but  he  is  bound  also  to  prove  that  such  driver  at  the  time  of  the 
injury  engaged  in  the  master's  business,  either  with  the  express 
or  implied  knowledge  and  consent.  So  the  burden  is  on  plaintiff 
to  prove  by  the  greater  weight  of  the  evidence  that  the  one  who 
was  driving  the  car  in  this  case  was  at  the  time  of  the  injury 
the  servant  or  agent  of  the  defendant,  and  that  he  was  at  such 
time  engaged  in  the  business  or  service  of  the  defendant. 

The  claim  asserted  by  plaintiff  being  that  defendant  had  pre- 
viously given  general  authority  to  L.  to  let  out  machines  for 
hire,  as  well  as  that  under  all  the  circumstances  plaintiff  had 
impliedly  given  such  authority,  it  is  therefore  incumbent  on 
plaintiff  to  show  either  such  express  authority  or  to  show  by 
some  fact,  circumstances,  declaration  or  act  of  the  defendant 


1174  INSTRUCTIONS  TO   JURY. 

that  he  had  impliedly  authorized  L.  to  let  out  or  take  out  and 
to  drive  his  automobile  for  hire.  In  deciding  this,  you  may 
consider  the  location  and  the  situation  of  the  parties  in  their 
business  in  respect  to  their  connection  and  location,  as  well  as 
all  that  they  may  have  said  and  done,  if  anything,  touching  the 
subject  of  hiring  of  machines  owned  by  defendant,  including 
the  payment  for  the  use  of  the  car  and  its  receipt  by  the  de- 
fendant. 

Where  it  is  sought  to  hold  the  owner  of  an  automobile  for 
personal  injury  caused  while  it  is  being  driven  by  another,  the 
rules  of  law  touching  master  and  servant  are  to  be  applied. 
If  you  conclude  that  L.  had  no  authority  to  hire  out  the  machine, 
and  that  he  took  it  out  without  authority,  your  verdict  should 
be  for  the  defendant.  But  if  you  find  that  L.  had  authority  to 
hire  out  and  drive  the  machine,  then  you  Avill  apply  the  rules 
of  law  pertaining  to  master  and  servant,  and  consider  and  de- 
termine the  question  whether  L.  was  acting  within  the  scope  of 
his  employment  at  the  time  of  the  injury. 

3.  Test  of  master's  liability — Was  servant  in  the  course  or 
scope  of  employment  f  The  test  of  the  master's  liability  for  the 
act  of  a  servant  is  whether  the  servant  was  acting  at  the  time 
within  the  scope  of  the  employment,  and  as  well  whether  the 
act  was  done  in  the  prosecution  of  the  business  in  which  the 
servant  was  employed  to  assist.2  The  term  "in  the  course  or 
scope  of  employment  or  authority"  means  while  engaged  in  the 
particular  employment  or  authority.  That  is,  it  means  while 
engaged  in  the  service  of  the  master,  or  while  about  the  master's 
business.  It  does  not  mean  during  the  period  covered  by  the 
employment.  It  does  not  embrace  any  service  after  the  discharge 
of  L.  by  C,  except  to  cover  the  trip  by  L.  from  Cincinnati  to 
Columbus ;  whether  L.  at  the  time  of  the  accident  was  acting 
within  the  scope  of  his  employment  or  service,  involves  an  in- 
quiry into  the  contract  of  hir  employment,  if  any  there  was, 
and  the  relation  of  his  acts  at  the  time  of  the  accident  to  the 
service  actually  performed  in  his  employment,  if  there  was  any 
employment. 


AUTOMOBILES INJURY    BY.  1175 

For  acts  done  by  L.  in  any  sense  warranted  by  express  or 
implied  authority,  the  ultimate  inquiry  in  this  case  concerning 
the  relation  between  the  parties,  resolves  itself  into  one  of  fact 
under  the  particular  evidential  facts  in  this  case  which  it  is 
the  province  of  the  jury  to  determine. 

4.  ^Yas  driver  of  auto  within  scope  of  employnu  ///  and  <  ngagt  <1 
in  master's  business  at  time  of  in-jury?  The  jury  is  instructed 
that  if  L.  had  either  express  authority,  or  if  the  facts  and  cir- 
cumstances warrant  the  inference  of  an  implied  authority  to 
him,  to  hire  out  and  drive  the  machine,  it  had  relation  to  per- 
forming the  service  of  hiring  the  car  to  C.  and  to  driving  it 
for  him  according  to  his  wishes  and  directions.  That  is  what 
the  scope  of  particular  employment  embraced  or  included,  if 
there  was  such  employment.  If  you  find  that  L.  took  the 
machine  with  authority  and  was  engaged  in  the  service  of 
driving  the  same  for  C.  as  hirer  thereof,  the  jury  will  determine 
whether  at  the  time  of  the  accident  or  injury,  he  was  engaged 
not  only  within  the  scope  of  the  particular  employment,  but 
within  the  line  of  service  and  business  of  such  employment. 

A  master  may  be  held  liable  for  the  act  of  a  servant  only  when 
the  latter  is  acting  within  the  express  or  implied  authority  of 
the  master,  when  engaged  in  his  business  within  the  course  of 
the  employment,  or  when  performing  the  particular  work  or 
service  for  which  he  was  engaged. 

If  the  jury  find  that  L.  was  authorized  to  hire  out  and  to 
drive  the  car,  still  the  defendant  may  not  be  held  liable  as 
master  for  the  acts  or  neglect  of  L.  as  servant,  if  at  the  time 
of  the  injury  he  had  departed  from  the  business  and  service  of 
the  defendant,  and  was  not  acting  in  pursuance  of  the  general 
purpose  of  the  employment,  or  in  relation  to  the  master's  work. 

An  owner  of  an  automobile  can  not  be  held  responsible  for 
injury  caused  by  one  who  has  taken  it  under  either  express  or 
implied  authority,  who  has  departed  from  the  scope  and  purpose 
of  the  legitimate  use  or  employment  of  the  machine,  and  who  is 
at  the  time  engaged  in  driving  the  same  for  his  own  pleasure  and 
enjoyment, 


1176  INSTRUCTIONS  TO  JURY. 

There  can  be  no  liability  on  the  part  of  the  defendant  if  the 
jury  find  that  L.,  at  the  time  of  the  accident,  was  not  acting  in 
pursuance  of  any  request  or  direction  of  C.  (hirer).  If,  at  the 
time,  he  was  not  driving  the  car  in  pursuance  of  the  contract 
of  hiring,  and  if  he  was  not  driving  it  by  the  direction  of  the 
person  who  hired  it,  but  instead  thereof  he  was  driving  it  for  his 
own  business  or  pleasure,  the  defendant  can  not  be  held  for  the 
consequences  of  L. 's  acts  of  neglect  when  so  driving  the  auto- 
mobile. 

If  the  jury  find  that  C.  (the  hirer)  had  paid  L.  in  full  for 
his  services  and  the  use  of  the  machine;  if  C.  did  not  thereafter 
authorize  or  request  L.  to  drive  the  car  on  Sunday  evening 
when  the  accident  occurred,  then  you  are  instructed  that  the 
defendant  can  not  be  held  responsible  for  his  acts  at  that  time, 
even  though  you  may  find  that  the  relation  of  master  and  serv- 
ant existed  between  defendant  and  L.,  because  whatever  the 
latter  did  under  such  circumstances  was  on  his  own  account  and 
was  beyond  the  scope  of  the  particular  employment  and  not 
within  the  business  of  the  defendant. 

If  you  find  that  C.  paid  L.  in  full  for  the  use  of  the  automo- 
bile, and  the  contract  of  hiring  was  at  an  end,  except  that  there 
remained  nothing  for  L.  to  do  but  to  return  the  car  from  Cin- 
cinnati to  Columbus,  and  that  subsequently  thereto  he  was  driv- 
ing the  car  in  Cincinnati  for  his  own  pleasure,  your  verdict 
should  be  for  the  defendant.3 

iLotz  v.  Hanlon,  217  Pa.  St.  339;  White  Oak  Coal  Co.   v.  Rivoux,  88  0. 
S.  31.     [See  ante,  chapter,  Burden  of  Proof.] 

2  White  Oak  Coal  Co.  v.  Rivoux,  supra. 

3  Modeled  from  Lorenz  v.  Adamson,  Franklin  County  Common  Pleas   (Kin- 

kead,  J. ) .  L.  &  A.  occupied  the  same  building,  L.  having  a  repair 
shop,  and  A.  an  automobile  sales  agency.  L.  hired  the  machine  of 
A.  out,  driving  It  himself. 
"The  owner  of  an  automobile  is  not  liable  in  an  action  for  damages  for 
injuries  to  or  death  of  a  third  person  caused  by  the  negligence  of 
an  employe  in  the  operation  of  the  automobile,  unless  it  is  proven 
that  the  employe,  at  the  time,  was  engaged  upon  his  employer's 
business  and  acting  within  the  scope  of  his  employment."  White 
Oak  Coal  Co.  v.  Rivoux,  88  0.  S.  .31. 


AUTOMOBILES — INJURY    BY.  1177 

Sec.  1522.  Ownership  of  machine  and  operation  thereof  by 
servant  employed  for  that  purpose  create 
prima  facie  liability — But  under  general  de- 
nial the  burden  is  on  plaintiff  to  prove  that 
such  servant  was  engaged  in  business  or 
service  of  master. 

The  jury  is  instructed  that  where  it  is  shown  that  a  person 
is  the  owner  of  an  automobile  and  that  while  it  is  being  run  and 
operated  by  a  servant  and  agent  of  such  owner  who  is  employed 
under  express  or  implied  authority  to  drive  and  operate  the 
same  in  the  business  of  the  master,  and  such  servant  is  guilty 
of  negligence  in  the  handling  and  operation  of  such  machine, 
the  owner  in  such  case  and  under  such  circumstances  is  prima 
facie  liable  for  injury  done  by  and  through  the  neglect  of  such 
servant.1 

But  wTiere  the  defendant  makes  a  general  denial  of  a  claim 
for  recovery  against  him  because  of  the  negligence  of  his  driver 
and  servant,  the  "burden,"  so  called,  or  rather  the  plaintiff  is 
bound  to  produce  the  quantum  of  evidence — a  preponderance 
thereof — to  prove  that  such  servant  or  chauffeur  was  not  only 
acting  within  the  scope  of  his  employment,  but  that,  at  the  time 
of  the  injury  complained  of,  he  was  engaged  in  the  service  and 
business  of  his  master,  the  owner  of  the  automobile.  The  de- 
fendant not  being  bound  to  do  more  than  to  introduce  evidence 
to  countervail  the  prima  facie  case  made  by  plaintiff  by  proof 
that  the  person  in  charge  of  the  machine  was  regularly  employed 
by  defendant  to  drive  and  operate  the  automobile,  the  burden 
and  obligation  still  remain  on  plaintiff  throughout  and  on  the 
whole  case  to  establish,  by  the  greater  weight  of  the  evidence, 
the  fact  that  the  servant  at  the  time  of  the  injury  was  engaged 
in  the  service  and  business  of  the  defendant.2 

i  White  Oak  Coal  Co.  v.  Rivoux,  88  O.  S.  31. 
z  Klunk  v.  Railway,  74  O.  S.  125. 


1178  INSTRUCTIONS  TO   JURY. 

Sec.  1523.  Injury  to  person  while  crossing  street  from  collision 
with  automobile  running  at  high  rate  of 
speed — Contributory  negligence  of  plaintiff — 
A  complete  charge. 

1.  Statement  of  questions. 

2.  Burden  on  plaintiff  to  prove  negligence  of  defendant; 

on  defendant   to  prove  plaintiff's   contributory   negli- 
gence. 

3.  Degree  of  evidence  and  credibility  of  witnesses. 

4.  Negligence  as  applied  to  drivers  of  automobiles  in  streets 

and  to  travelers  therein,  defined. 

5.  Relative  rights  and  duties  of  drivers  of  automobiles  and 

pedestrians  in  streets. 

6.  Right  and  duty  of  person  in  crossing  street. 

7.  Duty  of  driver  of  automobile  to  negligent  pedestrian. 

8.  Was  the  negligence  of  defendant  the  proximate  cause  of 

the  injury. — Proximate  cause  defined. 

9.  Concurrent  negligence. 

1.  Statement  of  questions.  The  questions  are,  whether  the 
defendant  was  guilty  of  the  negligent  conduct  which  was  the 
proximate  cause  of  the  injury,  and  whether  the  plaintiff  himself 
was  guilty  of  negligence  which  proximately  contributed  to  the 
injury  complained  of  by  him. 

The  act  of  negligence  charged  by  the  plaintiff  against  the  de- 
fendant is  that  the  latter  was  running  at  a  high  rate  of  speed, 
at  least  fifteen  miles  an  hour. 

The  defendant  denies  that  he  was  guilty  of  any  negligence. 

2.  Burden  on  plaintiff  to  prove  negligence  of  defendant;  on 
defendant  to  prove  plaintiff's  contributory  negligence.  The 
burden  of  proving  that  the  defendant  was  negligent  in  the  par- 
ticulars charged,  and  that  his  negligence  was  the  proximate 
cause  of  the  injury  complained  of,  rests  upon  the  plaintiff. 

The  burden  of  proving  that  plaintiff  was  guilty  of  contribu- 
tory negligence  as  the  proximate  cause  of  the  injury  rests  upon 
the  defendant,  unless  the  testimony  introduced  on  behalf  of  the 


AUTOMOBILES— IN.  I  IK  V    BY.  1179 

plaintiff  raises  a  presumption  or  inference  of  contributory  neg- 
ligence on  his  part,  in  which  event  the  burden  of  proof  devolves 
upon  plaintiff,  not  only  to  rebut  this  presumption,  but  to  estab- 
lish the  fact  that  there  was  no  such  contributory  negligence  on 
his  part,  or  that  it  was  not  the  proximate  cause  of  the  injury. 

3.  Degree  of  evidence  and  credibility  of  witnesses.  The  ulti- 
mate fact  found  by  you  from  the  evidence  must  be  established 
by  a  preponderance  of  the  evidence.  This  means  that  the  Eact 
which  you  find  must  be  established  by  the  greater  weight  of 
credible  testimony,  not  necessarily  by  a  greater  number  of  wit- 
nesses. You  may  give  such  credence  to  the  testimony  as  your 
judgment  dictates,  under  the  facts  and  circumstances  developed 
in  this  case.  You  are  the  sole  judges  of  the  credibility  of  wit- 
nesses, and  may  give  them  such  credit  as  seems  proper  to  you 
under  all  the  circumstances  appearing  in  this  case,  considering 
their  interest,  or  want  of  interest,  in  the  case,  their  ability  to 
learn,  know  and  relate  the  facts. 

4.  Negligence  as  applied,  to  drivers  of  automobiles  in  streets 
and  to  travelers  therein,  defined.  Negligence  is  the  failure  to 
observe,  for  the  protection  of  the  interests  of  another,  or  of 
one's  own  interest  or  welfare,  that  degree  of  care,  precaution 
and  vigilance  which  the  circumstances  in  this  case  reasonably 
demand.  It  is  the  failure  to  observe  ordinary  care  under  the 
circumstances  appearing  in  this  case.  Ordinary  care  is  that 
degree  of  care  which  persons  of  ordinary  care  and  prudence 
are  accustomed  to  observe  under  similar  circumstances.  That 
is,  ordinary  care  as  applied  to  the  conduct  of  the  defendant  in 
this  ease  is  such  care  as  persons  of  ordinary  care  and  prudence 
in  driving  and  managing  automobiles  in  streets  of  a  city  are 
accustomed  to  exercise  and  observe  for  the  protection  of  persons 
traveling  in  the  street ;  and  ordinary  care  as  applied  to  the 
plaintiff  in  this  case  is  such  care  as  persons  of  ordinary  care  and 
prudence  observe  in  crossing  streets,  to  avoid  danger  and  injury 
to  themselves  arising  from  the  driving  of  automobiles  through 
the  streets. 

5.  Relative-  rights  and  duties  of  drivers  <>f  automobiles  and 
pedestrians  in  streets.     The  law   is  that  automobiles  have  the 


1180  INSTRUCTIONS  TO   JURY. 

same  rights  in  the  streets  of  a  city  as  any  other  vehicle  running 
therein,  and  persons  traveling  on  foot  and  in  automobiles  or 
driving  automobiles  in  the  streets  of  a  city  have  equal  rights; 
neither  has  a  superior  right.  Equality  of  right  in  this  case 
required  that  both  the  driver  of  the  automobile  and  the  plaintiff 
in  crossing  the  street  should  have  exercised  ordinary  care  under 
the  circumstances  of  this  case.  It  was  the  duty  of  both  parties 
in  this  case  to  have  exercised  their  faculties  of  sight  and  hearing, 
the  plaintiff  for  passing  vehicles  or  automobiles,  and  for  his 
own  protection,  the  defendant  for  pedestrians  in  crossing  the 
street.1  Both  had  the  right  of  way,  and  both  were  required  to 
be  cautious  and  to  exercise  that  degree  of  care  which  the  case 
demands.  Both  were  bound  to  observe  ordinary  care  to  avoid 
collision.2 

It  was  the  duty  of  the  defendant  in  driving  his  automobile  to 
have  observed  ordinary  care  such  as  would  have  enabled  him  to 
observe  the  danger  to  the  plaintiff,  whether  plaintiff  was  pru- 
dent or  careful,  or  whether  he  was  neglectful  in  observing  the 
car  of  defendant  as  it  was  passing  along  the  street  and  approach- 
ing him.     A  driver  of  an  automobile  in  the  streets  of  a  city 


i  Look  and  listen:  Said  not  always  incumbent  upon  one  about  to  cross 
a  street  car  track,  either  on  foot  or  with  a  team,  to  look  and  listen 
for  street  car.     Eailway   v.  Kiner,   17  C.   C.    (X.S.)    100. 

Bound  "to  the  alert  and  watchful  performance  of  the  duty  of  all  travelers 
on  all  highways  to  look  where  they  are  going."  Mclllhenney  v. 
Pennsylvania,  214  Pa.  St.  44;  Belleveau  v.  Supply  Co.,  200  Mass. 
237. 

Mere  failure  to  look  and  listen  not  necessarily  negligent.  Murphy  v. 
Armstrong,  107  Mass.  199;  McCrohan  v.  Davison.  187  Mass.  466; 
Rogers  v.  Phillips,  206  Mass.  308;  Babbitt,  Motor  Veh.,  sees.  271, 
306. 

2  Equality  of  right.  Thompson  on  Xeg..  2d  ed..  sec.  1300;  Babbitt  Motor 
Vehicle,  sec.  913:  Bowser  v.  Wellington,  126  Mass.  391;  Murphy 
v.  Transfer  Co.,  167  Mass.  199:  "It  is  as  much  the  duty  of  foot 
passengers  attempting  to  cross  a  street  or  road  to  look  out  for 
passing  vehicles  as  it  is  the  duty  of  drivers  to  see  that  they  do  not 
run  over  passengers."  Cotton  v.  Wood.  8  Com.  Bench  Bep.  568 ; 
Hennessey  v.  Taylor,  189  Mass.  583;  West  v.  Transp.  Co.,  94  X.  Y. 
Supp.  426;  Wilkins  v.  Transp.  Co.,  101  X.  'S  .  Supp.  650;  Berry, 
Autos,  sees.  124,  125.  171.  Bights  reciprocal.  Babbitt  Motor  Veh., 
sec.  240. 


AUTOMOBILES INJURY    BY.  1181 

must  observe,  and  this  defendant  should  have  observed,  such 
watchfulness  as  ordinary  care  and  prudence  demands  for  foot- 
men, that  is,  pedestrians  or  travelers  in  the  street — and  must 
have  his  machine  under  ordinary  control,  and  must  take  such 
steps  in  the  handling  of  the  car  as  ordinary  care  and  prudence 
in  such  case  demands,  as  will  enable  him  to  avoid  injuring  others 
who  have  equal  rights  in  the  streets.  It  is  the  duty  of  drivers 
of  automobiles  in  the  streets  of  a  municipality  to  keep  a  vigilant 
watch  ahead  for  vehicles  and  pedestrians  3  and  to  give  a  signal 
by  blowing  their  horn  at  crossings,  and  at  other  places  than 
crossings  in  the  street,  when  ordinarily  necessary  to  warn  foot- 
travelers  of  danger.  Whether  or  not  ordinary  care  would  have 
required  the  driver  of  the  automobile  under  the  particular 
circumstances  of  this  case  as  developed  by  the  evidence,  is  for 
the  jury  to  decide.  In  doing  so  you  may  consider  the  conduct 
of  the  traveler,  the  plaintiff  in  this  case,  whether  he  was  care- 
less or  negligent.  It  is  your  duty  to  determine  whether  or 
not  the  neglect  to  give  such  signal  was  a  failure  to  observe 
ordinary  care  under  the  circumstances. 

6.  Right  and  duty  of  person  in  crossing  street.  The  law  is 
that  a  person  in  crossing  the  street  is  not  restricted  to  the  street 
crossings,4  although  ordinary  care  required  of  a  person  in  cross- 
ing at  a  place  other  than  the  street  crossing  might,  and  would, 
under  the  particular  circumstances  of  a  case,  require  him  to 
observe  greater  vigilance  for  passing  vehicles  than  if  he  was 
crossing  at  the  regular  street  crossing,  but  that  is  nothing  more 
than  ordinary  care  under  such  circumstances,  only  varying 
according  to  the  circumstances.  A  person  crossing  the  street 
at  a  place  other  than  the  street  crossing  is  bound  to  take  notice 
of  the  rights  of  those  driving  automobiles  or  other  vehicles  in 
passing  along  the  highway  at  such  places ;  these  rules  are  to  be 
applied  to  the  plaintiff's  conduct  in  this  case. 

Ordinary  care  and  prudence  would  require  plaintiff,  who  was 
crossing  the  street  at  a  place  other  than  the  regular  crossing, 


•iMcFcrn  v.  Gardner,  121  Mo.  App.   1,  10;  Berry  Autos,  sec.  124. 
*  Babbitt   Motor    Vehicle,    sec-.    268;     Keith    v.    Railway,    196   Mass.    478; 
Gerbard  v.  Ford  Motor  Co., 155  Mich.  (lis. 


1182  INSTRUCTIONS  TO   JURY. 

to  be  on  the  lookout  such  as  would  be  reasonably  necessary  in 
the  street  at  that  time  and  place,  in  order  to  have  avoided  injury 
to  him  from  the   passing  automobile   of  the  defendant.      This 
precaution  does  not  countenance  a  person  walking  across  the 
street  without  turning  at  all,  depending  upon  the  caution  of 
drivers  of  vehicles  or  automobiles,   but   in   crossing  the   street 
such  person  must  have  such  realization  of  his  condition  and  the 
surrounding   circumstances   as   will   enable  him   to   respect   the 
rights  of  drivers  of  vehicles  or  automobiles,  and  to  observe  such 
ordinary  care  as  is  essential  under  the  circumstances   for  his 
own  protection.5     This  rule  of  care  required  of  the  pedestrian 
is  an   essential   corallary   to   the   rule   of   equality   of   right   of 
drivers   and  pedestrians   in  the  street.     If  the  pedestrian  was 
relieved  of  this  care  and  caution  and  all  the  responsibility  of 
watchfulness  and  care  to  avoid  injury  to  pedestrians  was  placed 
upon  the  driver  of  the  automobile,  the  right  of  the  pedestrian 
would  in  such  event  be  superior  and  not  equal.     I  do  not  mean 
to  say  that  one  who  is  about  to  cross  a  street  is  bound  to  look  in 
both   directions,    for   that  is   not   the   law   unless   such    rule    is 
required  in  places  of  great  congestion  in  the  crowded  thorough- 
fares of  a  city.     Such  a  lookout  is  only  necessary  as  will  enable 
one  in  crossing  the  street  to  avoid  injury  or  danger  to  himself 
from  passing  conveyances,  such  as  automobiles.6     While  one  in 
crossing  the  street  has  a  right  to  rely  upon  the  care  and  pru- 
dence of  one  who  is  driving  an  automobile  along  the  street,  still 
it  is  his  duty  to  observe  ordinary  care  to  avoid  injury  to  him 
from  passing  automobiles. 

7.  Duty  of  driver  of  automobile  to  negligent  pedestrian. 
While  the  law  confers  equal  and  corralative  rights  upon  both 
the  driver  of  an  automobile  and  the  pedestrian  in  the  streets  of 
a  city,  requiring  each  to  observe  ordinary  care  and  vigilance  in 

s  This  may  seem  a  more  stringent  rule  than  some  of  the  decisions  seem  to 

favor,  but  in  congested  centers  such  a  rule  is  demanded.      But  the 

rule  is  well  sustained.      Berry  Autos,  sec.  171. 
« Look   out.     See  ante  note    (1).     See   Berry   Autos,   sec.    171.     Pedestrian 

not  bound  to  keep  continuously  looking.      Hennessey  v.  Taylor,  189 

Mass.  583;    3  L.  R.  A.   (N.S.)   345. 


AUTOMOBILES INJURY    BY.  1183 

the  use  thereof,  and  to  avoid  injury,  there  still  rests  upon  the 
driver  of  an  automobile  a  duty  to  observe  ordinary  care  and 
vigilance  to  avoid  injury  to  a  pedestrian  who  may  not  at  the 
time  be  using  his  ordinary  senses  of  sight  and  hearing  and  pre- 
caution for  his  own  welfare  and  safety  in  crossing  the  street. 
It  becomes  the  duty  of  the  driver  of  the  automobile  under  such 
circumstances  to  be  on  the  lookout  for  persons  who  thus  fail  to 
observe  ordinary  care  for  their  own  safety,  and  when  discovering 
a  pedestrian  so  failing  to  observe  such  care  for  his  own  safety, 
to  observe  ordinary  care  to  avoid  injury  to  him  by  sounding  a 
warning  or  giving  a  signal  such  as  may  be  reasonably  and  ordi- 
narily necessary  under  the  circumstances,7  and  to  observe  what- 
ever precautions  may  be  reasonable  and  ordinarily  necessary 
under  such  circumstances  to  avoid  injury  to  such  pedestrians. 

8.  Wets  the  negligence  of  defendant  the  proximate  cause  of 
injury — Proximate  cause  defined.  If  you  should  be  of  the 
opinion  that  the  defendant  was  guilty  of  negligence  in  the 
management  of  the  automobile  which  he  was  running,  as  shown 
in  this  case,  it  will  then  be  your  duty  to  determine  whether  or 
not  his  negligence  was  the  proximate  cause  of  the  injury;  that 
is,  whether  or  not  the  negligence  of  the  defendant  was  the  cause 
of  the  injury.  If  you  are  of  the  opinion  that  both  plaintiff  and 
defendant  were  guilty  of  negligence  as  charged  in  their  respec- 
tive pleading,  it  will  be  necessary  for  you  to  determine  which 
negligence,  that  of  the  defendant  or  that  of  the  plaintiff,  was  the 
proximate  cause  of  the  injury. 

Proximate  cause  is  the  act  or  conduct  of  another  party  which 
is  the  immediate  cause  of  the  injury,  the  negligent  act  but  for 
which  the  injury  would  not  have  occurred.  Was  the  cause  of  the 
injury  to  plaintiff  in  this  case  the  negligence  of  the  defendant 
in  operating  his  car  at  a  high  rate  of  speed,  as  charged  in  the 
petition,  or  was  it  the  negligence  of  the  plaintiff  in  failing  to 
observe  ordinary  care  for  his  own  protection  while  he  was  walk- 
ing across  the  street,  as  charged  in  the  answer  of  the  defendant  ? 
If  you  should  find  from  the  evidence  that  the  defendant  was 
guilty  of  negligence  in  the  particulars  charged  and  complained 

7  Berry  Autos,  sec.  124;    Lampe  v.  Jacobsen,  46  Wash.  533. 


1184  INSTRUCTIONS  TO  JURY. 

of  in  the  petition,  and  that  the  same  was  the  proximate  cause  of 
the  injury  to  the  plaintiff,  it  will  be  your  duty  to  render  a 
verdict  in  behalf  of  the  plaintiff.  On  the  other  hand,  if  you 
should  be  of  the  opinion  either  that  the  defendant  was  not 
guilty  of  negligence,  or  if  the  defendant  was  guilty  of  negli- 
gence, yet  you  find  that  the  plaintiff  was  guilty  of  negligence  in 
failing  to  observe  ordinary  care  for  his  own  safety,  and  that  his 
negligence  was  the  proximate  cause  of  the  injury,  then  in  such 
case  your  verdict  should  be  for  the  defendant.  If  you  find 
from  the  evidence  that  the  defendant  and  the  plaintiff  were 
both  guilty  of  negligence,  you  are  instructed  that  the  negligence 
on  the  part  of  the  plaintiff  can  only  operate  to  bar  recovery  by 
him  when  it  is  the  proximate  or  immediate  cause  of  the  injury. 
If  you  should  find  that  the  plaintiff's  own  negligence  exposed 
him  to  the  risk  of  the  injury  of  which  he  complains,  he  is 
nevertheless  entitled  to  your  verdict  if  you  should  find  that 
the  defendant,  after  he  became  aware  or  ought  to  have  become 
aware  of  plaintiff's  danger,  failed  to  use  ordinary  care  to  avoid 
injuring  him  and  the  plaintiff  was  thereby  injured.  But  in 
considering  the  negligence  of  both  plaintiff  and  defendant,  you 
may  take  into  consideration  the  rule  already  mentioned,  that 
each  one,  driver  and  footman  in  this  case,  had  a  right  to  rely 
upon  the  observance  of  ordinary  care  to  avoid  injury  and  being 
injured,  this  right  not  being  such  as  to  warrant  either  one  in 
failing  to  observe  ordinary  care  and  prudence.8 

9.  C&ncurrent  negligence.  If  you  should  find  that  both  plain- 
tiff and  defendant  were  negligent  in  failing  to  observe  ordinary 
care  under  the  circumstances  of  this  case,  and  that  the  negli- 
gence of  both  plaintiff  and  defendant  directly  contributed  to 
produce  the  injury,  and  that  the  negligence  of  plaintiff  was 
concurrent  in  point  of  time  with  that  of  the  defendant,  the 
plaintiff  can  not  recover.  But  if  the  negligence  of  the  plain- 
tiff, if  you  find  that  he  was  negligent,  merely  put  him  in  a  place 
of  danger,  and  did  not  continue  until  the  moment  of  the  injury, 
and  the  defendant  either  knew  of  his  danger,  or  by  the  exercise 

8  Berry  Autos,  sec.  128;    Buscher  v.  Transp.  Co.,  106  N.  Y.  App.  Div.  493; 
Hennessey  v.  Taylor,  189  Mass.  583. 


AUTOMOBILES INJURY    BY.  1185 

of  ordinary  diligence  he  would  have  known  of  the  danger,  then 
plaintiff's  negligence  did  not  concurrently  combine  with  defend- 
ant's negligence  to  produce  the  injury,  and  the  defendant's 
negligence  in  such  case  would  be  the  proximate  cause.  But  if 
the  plaintiff  was  guilty  of  failure  to  observe  ordinary  care  for 
his  own  safety  up  to  and  at  the  very  moment  of  his  injury, 
and  the  defendant  by  the  exercise  of  ordinary  care  could  not 
have  observed,  and  did  not  learn  and  know  of*  plaintiff's  danger 
until  he  was  so  near  the  plaintiff  that  by  the  exercise  of  ordi- 
nary care  he  was  unable  to  avoid  injuring  him,  then  your  verdict 
should  be  for  the  defendant.9 

9  Fleming  v.  Lawwell,   Franklin  County   Com.  Pleas,  Kinkead,  J.      As   to 
concurrent  negligence,  see  Drown  v.  Traction  Co.,  73  O.  S.  230. 

Sec.  1524.    Driver    must    anticipate    meeting    pedestrian    at 
street  crossing. 

The  jury  is  instructed  that  it  was  the  duty  of  the  defendant 
through  its  servant,  in  driving  the  automobile,  to  have  antici- 
pated that  he  would  meet  persons  at  the  street  crossing  involved 
in  this  case ;  he  was  bound  to  keep  his  machine  under  such 
reasonable  control  as  would  have  enabled  him  to  have  avoided 
collision  with  any  one  who  was  also  using  reasonable  and 
ordinary  care  and  caution  in  traveling  upon  or  crossing  the 
street.  If  necessary,  to  avoid  injuring  a  pedestrian  crossing 
the  street  who  is  at  the  time  acting  prudently  and  carefully,  Hie 
driver  of  the  automobile  should  slow  up,  or  even  stop.  But  on 
the  other  hand,  a  reasonably  prudent  driver  of  an  automobile 
in  passing  over  street  crossings  when  pedestrians  are  passing 
across  the  same,  or  when  persons  are  passing  across  the  same 
on  a  bicycle,  may  be  justified  under  the  particular  circumstances 
of  the  case  in  adopting  any  other  precautionary  measure  than 
that  of  slackening  the  speed  or  of  stopping  the  car.  He  may 
adopt  any  other  precautionary  measure  which  would  have  been 
pursued  by  ordinarily  prudent  and  careful  drivers  of  such 
machines  under  the  particular  circumstances  as  shown  in  tliis 

case.1 

»  Teverousky    v.    The   Cols.    Garage   &   Mch.    Co.,    Franklin   Co.   Com.    PL, 
Kinkead,  J. 


1186  INSTRUCTIONS  TO  JURY. 

Sec.  1525.    Duy  of  driver  to  give  signal  at  street  crossing,  and 
to  adopt  other  precautions. 

While  it  is  the  duty  of  drivers  of  automobiles  to  blow  their 
horns  or  give  other  signal  on  approaching  street  crossings, 
such  as  are  customarily  used  in  propelling  automobiles,  still 
even  the  giving  of  such  signal  alone  may  not  be  sufficient,  under 
all  circumstances,  without  adopting  other  precautionary  meas- 
ures to  avoid  injury,  such  as  are  deemed  reasonably  necessary, 
and  such  as  are  usually  pursued  by  prudent  persons  under  such 
circumstances,  such  as  slackening  the  speed,  stopping,  or  turning 
his  machine  so  as  to  avoid  the  collision. 

It  is  for  the  jury  to  say  whether  or  not  the  defendant  here, 
under  the  circumstances  of  this  case,  did  adopt  any  precaution- 
ary measures  reasonably  calculated  to  avoid  the  collision  with 
the  plaintiff.  If  he  did,  the  defendant  should  be  held  blameless, 
if  he  did  not,  he  should  be  held  to  be  at  fault.  The  true  test 
always  is  that  the  driver  of  an  automobile  at  street  crossings 
must  observe  the  care  and  caution  which  careful  and  prudent 
drivers  of  motor  vehicles  would  have  exercised  under  the  par- 
ticular circumstances,  the  question  in  this  case  being  for  the 
jury.1 
i  Teverousky  v.  Cols.  Garage,  etc.,  Co.,  Franklin  Co.  Com.  PL,  Kinkead,  J. 

Sec.  1526.    Duties  of  drivers  as  to  speed — The  statute. 

One  of  the  charges  of  negligence  in  this  case  is  that  the 
defendant  operated  its  car  at  an  unlawful  rate  of  speed,  to-wit, 
at  the  rate  of  about  eighteen  miles  per  hour. 

The  general  code  of  this  state  provides  that  no  person  shall 
operate  a  motor  vehicle  on  the  public  roads  or  highways  at  a 
speed  greater  than  is  reasonable  or  proper,  having  regard  for 
width,  traffic,  use  and  the  general  and  usual  rules  of  such  road 
or  highway,  or  so  as  to  endanger  the  property,  life  or  limb  of 
any  person,  nor  at  a  greater  speed  than  eight  miles  an  hour 
in  the  business  and  closely  built  up  portions  of  a  municipality, 
nor  more  than  fifteen  miles  an  hour  in  other  portions  thereof, 
or  more  than  twenty  miles  an  hour  outside  of  a  municipality.1 
l  G.  Code,  sees.  12603,  12604. 


AUTOMOBILES — INJURY    BY.  1187 

Sec.  1527.     Same — Violation  of  statute  prima  facie  negligence 
— Not  conclusive. 

It  is  the  law  that  violation  of  a  statute  of  the  state  constitutes 
prima  facii  negligence.  That  means  simply  that  proof  of  the 
violation  of  a  statute  of  the  running  of  an  automobile  at  a 
greater  rate  of  speed  in  a  municipality  than  is  provided  by 
statute  shall  be  considered  as  prima  facie  proof  of  negligence; 
but  it  is  not  conclusive ;  if  the  jury  are  of  the  opinion  that  in 
this  particular  case  under  all  the  circumstances,  that  the  defend- 
ant ran  the  machine  at  a  greater  rate  of  speed  that  is  provided 
by  law,  you  are  not  required  to  consider  that  fact  as  conclusive 
of  the  negligence  on  the  part  of  the  defendant,  because  the  fact 
of  negligence  is  within  the  exclusive  province  of  the  jury  to 
determine  in  the  light  of  all  of  the  evidence  and  in  the  light  of 
the  standard  of  duty  fixed  by  the  statute  as  applicable  to  the 
peculiar  circumstances  of  this  case.  If  the  jury  is  of  the  opinion 
that  the  evidence  in  this  case  has  overcome  or  rebutted  the 
prima  facie  case  made  out  under  the  statute,  and  find  that  under 
all  the  circumstances  that  the  defendant  was  not  negligent  in 
the  operation  of  the  car,  you  are  permitted  under  the  law  to 
arrive  at  such  conclusion  notwithstanding  the  statutory  standard 
of  duty.  The  mere  rate  of  speed,  whether  high  or  low,  lawful 
or  unlawful,  is  immaterial  unless  it  entered  into  the  injury  and 
was  the  efficient  cause  thereof.1 

i  Teverousky  v.  Cols.  Garage,  etc.,  Co.,  Franklin  Co.  Com.  PI.,  Kinkead,  J. 
See  Berry  Autos,  sec.   164. 

Sec.  1528.     Duties  of  drivers  in  meeting  others  driving  in  the 
street — Reasonable  look-out — Control  of  ma- 
chine. 
An  automobile  has  the  same  duties  to  perform  when  meeting 
others  driving  in  the  streets  (or  pedestrians)  as  drivers  of  other 
vehicles  in  the  streets  of  a  city.     No  matter  at    whal    rate  of 
speed  the  driver  of  an   automobile  may  be   running,   whether 
within  or  beyond  the  law,  he  slill  is  bound  to  observe  ordinary 
care  to  anticipate  that  he  may  meet  persons  at  any  point  in  a 


1188  INSTRUCTIONS  TO  JURY. 

public  street,  and  especially  at  a  street  crossing,  and  he  is  bound 
to  keep  a  reasonable  lookout,  and  to  keep  his  machine  under 
such  reasonable  and  ordinary  control  as  would  enable  him  to 
avoid  a  collision  with  another  person  using  reasonable  care 
and  prudence  in  crossing  the  street.  The  fact  whether  or  not  the 
defendant  did  or  did  not  run  and  operate  its  car  at  a  greater 
rate  of  speed  than  was  reasonable  under  the  circumstances,  is 
to  be  taken  into  consideration,  together  with  all  the  other  evi- 
dence offered  in  the  case  showing  what  the  defendant  did  or  did 
not  do,  and  what  the  plaintiff  did  or  did  not  do,  in  determining 
the  question  of  the  efficient  cause  of  the  injury  to  the  plaintiff.1 
i  Teverousky  v.  Cols.  Garage,  etc.,  Co.,  Franklin  Co.  Com.  PI.,  Kinkead,  J. 

Sec.  1529.    Driver,  keeping  lookout,  having  car  under  reason- 
able control,  may  assume  pedestrian  will  not 
suddenly  turn  backward. 
When  an  operator  of  an  automobile  has  had  time  to  learn  or 
discover,  or  by  the  exercise  of  a  proper  and  ordinary  lookout 
should  have  realized,  learned  or  discovered  that  a  person  whom 
he  is  approaching,  or  whom  he  meets  or  is  approaching  is  in 
a  position  of  disadvantage,  and  will  probably  have  difficulty  to 
avoid  the  coming  automobile,  the  operator  of  the  motor  vehicle 
is  under  such  circumstances  required  to  exercise  increased  exer- 
tion to  avoid  a  collision,  which,  however,  is  nothing  moie  than 
ordinary  care  under  the  circumstances. 

If  the  defendant  acted  upon  the  assumption  that  the  plaintiff 
was  passing  a  line  in  the  street  which  defendant  was  passing, 
or  would  pass,  if  defendant  assumed  that  he  would  probably 
pass  the  point  where  plaintiff  was  crossing  the  street — consider- 
ing the  speed  at  which  he  was  running  his  machine — and  if 
defendant  was  acting  prudently  and  carefully  in  your  opinion, 
and  had  sufficient  control  of  his  machine,  and  had  reasonable 
ground  to  believe  that  plaintiff  would  continue  her  course  in 
crossing  southwardly  on  the  street,  and  if  the  defendant  had 
reasonable  ground  to  believe  that  he  would  be  able  to  pass  over 
the  crossing  north  of  the  plaintiff  without  injuring  her;  and  if 


AUTOMOBILES INJURY    BY.  1189 

the  jury  are  of  the  opinion  from  all  the  evidence  that  the  defend- 
ant would  have  passed  the  plaintiff  had  she  continued  on  her 
course  southward,  instead  of  stopping  and  turning  backward 
and  going  northward;  and  if  you  believe  under  all  the  circum- 
stances that  defendant  was  observing  ordinary  care  and  pru- 
dence in  driving  the  car,  and  that  an  ordinarily  prudent  person 
in  the  management  of  the  car  under  the  circumstances  of  this 
case  would  have  been  justified  in  acting  on  the  assumption  that 
plaintiff  would  continue  on  her  course,  and  that  she  would  not 
turn  backward,  and  if  you  believe  that  the  defendant  used  ordi- 
nary care  to  avoid  the  collision  with  plaintiff  after  be  discovered 
that  plaintiff  did  turn  backward,  and  that  by  the  use  of  ordinary 
care  and  prudence,  the  defendant  was  unable  to  avoid  collision 
with  plaintiff,  either  by  turning  his  car  or  by  stopping  the  same, 
then  your  verdict  should  be  for  the  defendant.1 
i  Teverousky  v.  Cols.   Garage,  etc.,  Co.,  supra. 

Sec.  1530.     Pedestrian  going  unexpectedly  in  front  of  auto. 

If  a  person  goes  unexpectedly  in  front  of  a  moving  auto- 
mobile, which  is  being  prudently  managed  and  controlled  by 
the  driver,  who  is  unable,  by  the  exercise  of  ordinary  care  and 
prudence,  to  avoid  injuring  such  person,  he  is  not  liable.  He 
is  only  liable  under  such  circumstances  if  he  fails  to  observe 
ordinary  care  and  prudence  in  the  management  and  control  of 
his  car,  and  by  reason  of  such  failure  causes  the  injury. 

Sec.  1531.     Warnings  given  pedestrian  causing  bewilderment. 

If  the  plaintiff  was  crossing  the  street  without  giving  any 
heed  or  attention  whatever  to  the  approaching  automobile,  and 
the  jury  believe  and  find  that  without  regard  to  the  speed  of 
the  automobile  at  the  time,  that  the  plaintiff  would  have  crossed 
over  and  across  the  street  in  safety  had  not  her  attention  been 
suddenly  called  to  the  approaching  machine,  and  if  the  jury 
are  of  the  opinion  and  find  that  the  warnings  given  to  her  by 
approaching  persons  on  the  street  at  the  time  threw  her  into  a 


1190  INSTRUCTIONS  TO   JURY. 

state  of  bewilderment  and  that  she  miscalculated  in  her  efforts 
to  avoid  the  injury,  and  that  she  would  have  passed  on  in  safety- 
had  such  warning  not  been  given  her,  and  that  the  warning 
so  given  her  of  the  approaching  automobile  caused  her  un- 
expectedly to  step  backward  so  as  to  place  her  in  front  of  the 
machine  and  that  the  injury  would  have  occurred  in  the  same 
way  whether  the  speed  of  the  car  was  normal  and  unreasonable, 
or  whether  it  was  excessive,  and  that  the  operator  of  the  car 
was  unable  by  the  exercise  of  ordinary  care  to  avoid  colliding 
with  plaintiff  after  she  did  step  backward,  then  your  verdict 
must  be  for  the  defendant.1 

i  Teverousky  v.  Cols.  Garage,  etc.,  Co.,  Franklin  Co.  Com.  PI.,  Kinkead,  J. ; 
108  Miss.  1:    175  Pa.  St.  559. 

Sec.  1532.  Driver  running  excessive  rate  of  speed  approach- 
ing crossing — Gives  no  signal — Pedestrian 
placed  in  sudden  danger — Not  negligent  if 
injudicious  choice  made  between  hazards. 

If,  however,  you  find  that  the  defendant  was  running  his 
machine  at  a  dangerous  rate  of  speed,  and  if  he  failed  to  slow 
up  on  approaching  the  crossing,  and  if  he  failed  to  sound  any 
warning  or  signal  of  his  approach,  and  you  believe  and  find 
that  plaintiff  without  any  fault  on  her  part  was  placed  in  a 
situation  of  danger,  and  that  she  was  placed  in  such  situation 
of  danger  solely  through  the  negligent  conduct  of  the  defend- 
ant, then  and  in  that  event  plaintiff  is  not  to  be  held  to  the 
exercise  of  the  same  care  and  circumspection  that  prudent 
persons  would  exercise  where  no  danger  is  present,  and  she  can 
not  be  said  to  be  guilty  of  negligence  if  she  failed  to  make  the 
most  judicious  choice  between  hazards  presented,  or  would  have 
escaped  injury  if  she  had  chosen  to  go  differently.  The  question 
in  such  case  is  not  what  a  careful  person  would  do  under 
ordinary  circumstances,  but  what  would  she  be  likely  to  do  or 
might  reasonably  be  expected  to  do  in  the  presence  of  such 
existing  circumstances  of  peril.     Indeed  this  rule  would  apply 


AUTOMOBILES — IX  JURY    BY.  I  1 !  1 1 

to  the  conduct  of  the  defendant  in  this  case  making  his  choice 
of  course  to  avoid  the  collision,  providing  he  did  not  create  the 
peril  by  his  own  neglect,  but  that  plaintiff  herself  by  her  own 
fault  placed  herself  in  a  position  of  danger. 

This  question  is  within  the  province  of  and  is  to  be  determined 
by  the  jury  in  the  light  of  all  the  circumstances  developed  in 
the  evidence.  But  the  jury  will  understand  in  considering  and 
determining  the  cause  of  the  danger  and  peril  in  this  ease,  and 
of  the  question  of  the  existence  of  danger  and  peril  and  who 
was  responsible  for  the  cause  thereof,  that  you  must  consider 
and  determine  whether  such  peril  was  caused  by  the  failure  of 
the  defendant  to  observe  ordinary  care  and  prudence  in  the 
management  and  control  of  the  machine,  or  whether  it  was  due 
to  the  failure  of  the  plaintiff  to  use  her  senses  of  sight  and 
hearing,  or  in  acting  upon  the  warning  given  her  by  other 
persons  of  the  approach  of  the  automobile. 

The  jury  Avill  have  occasion  to  apply  this  rule  of  care  and 
circumspection  to  be  exercised  by  the  plaintiff  in  making  her 
choice  of  action,  only  in  the  event  that  you  are  of  the  opinion 
that  her  peril  was  due  to  the  fault  or  neglect  of  the  defendant. 
If  you  find  that  such  peril  was  due  to  her  own  neglect,  or  was 
caused  by  the  warnings  given  her  by  other  persons,  then  you 
will  have  no  occasion  to  consider  this  question  and  your  verdict 
should  be  in  such  case  for  the  defendant;  provided  you  find 
under  the  previous  instructions  given  you  to  the  effect  that  the 
defendant  would  not  be  liable  if  you  find  that  plaintiff  would  not 
have  been  injured  if  she  had  used  her  senses  of  sight  and 
hearing  and  kept  on  her  forward  course,  and  had  not  heeded 
and  acted  upon  the  warnings  given  her  by  other  persons  and 
that  defendant  could  not  have  avoided  the  injury  to  her  after 
he  had  discovered  the  plaintiff  in  a  position  of  peril  and  had 
used  reasonable  care  to  avoid  injuring  her.' 

iTeverousky  v.  The  Columbus  Garage  &    Machine  Co.,  Franklin  Co.  Com. 

PI.,  Kinkead,  J. 
Measure   of   care    required   of    one    placed    in    sudden    peril.       Pennsylvania 

E.  R.  Co.  v.  Snyder,  55  0.  S.  342;    Berry  Autos,  sec.  157. 


1192  INSTRUCTIONS  TO   JURY. 

Sec.  1533.  Automobile  lawful  means  of  conveyance — Equality 
of  right  between  driver  and  pedestrian — An- 
other form. 

The  law  is  that  automobiles  are  a  lawful  means  of  conveyance, 
and  they  have  the  same  rights  in  the  streets  of  a  city  as  any 
other  vehicle  running  thereon ;  and  persons  traveling  in  the 
streets  or  driving  automobiles  in  the  streets  of  a  city  have  equal 
rights.  Neither  has  a  superior  right.  Equality  of  right  in  this 
case  required  that  both  the  driver  of  the  automobile  and  the 
plaintiff  in  crossing  the  street  should  exercise  ordinary  care 
under  the  circumstances  of  this  case.  It  was  the  duty  of  both 
parties  in  this  case  to  have  exercised  their  faculties  of  sight  and 
hearing;  plaintiff  for  passing  vehicles  or  automobiles,  for  his 
own  protection,  and  the  defendant  for  persons  propelling  or 
riding  a  bicycle.  Both  had  the  right  of  way,  and  both  were 
required  to  be  cautious.  Both  were  bound  to  observe  ordinary 
care  to  avoid  collision.  It  was  the  duty  of  the  defendant  in 
driving  his  automobile  to  have  observed  ordinary  care,  such  as 
would  have  enabled  him  to  have  observed  the  danger  of  the 
plaintiff,  if  he  was  in  a  position  of  danger,  whether  the  plain- 
tiff was  negligent  in  observing  the  approaching  car  as.  it  was 
passing  along  the  street  and  approaching  the  street  crossing  or 
not.1 

i  Brender   v.  Parker,   Franklin   Co.   Com.   PL.   Kinhearl,  J.     See   ante,   sec. 
1523,  note  2. 

Sec.  1534.     Correlative  duties  of  driver  of  auto  and  pedestrian. 

A  driver  of  an  automobile  in  the  streets  of  a  city  must 
observe,  and  it  was  the  duty  of  the  defendant  to  have  observed 
such  watchfulness  as  ordinary  care  and  prudence  demands  for 
other  persons  driving  a  wheel  or  propelling  a  wheel  on  the 
street — that  is,  as  to  footmen  or  travelers  in  the  street,  by 
wheels  and  otherwise ;  he  must  have  his  machine  under  such 
reasonable  and  ordinary  control,  and  must  take  such  steps  in 
the  handling  thereof  as  ordinary  care  and  prudence  in  such 


AUTOMOBILES — INJURY    BY.  1193 

case  requires,  such  as  will  enable  him  to  avoid  injuring  others 
who  have  equal  rights  in  the  street. 

It  is  the  duty  of  drivers  of  automobiles  in  the  streets  of  a 
city  to  give  a  signal  by  blowing  the  horn  or  giving  other  signals 
at  crossings  to  warn  other  persons  who  are  about  to  or  who 
are  crossing  the  street. 

Sec.  1535.     Ordinance   as   to  passing   vehicles   and    carrying 
lights — How  considered. 

Two  ordinances  have  been  introduced  in  evidence  in  this  case ; 
one  by  the  plaintiff  touching  the  manner  in  which  vehicles  are 
required  to  pass  into  another  street;  another  touching  the 
obligation  of  one  to  carry  a  light  on  wheels  or  bicycles.  The 
violation  of  these  ordinances,  if  they  were  violated  as  claimed 
in  this  case,  does  not,  as  does  the  violation  of  a  state  statute, 
constitute  prima  facie  evidence  of  negligence;  but  the  jury 
may  simply  consider  the  rule  of  conduct  prescribed  by  ordi- 
nance as  one  of  the  items  of  evidence  reflecting  upon  the  matters 
complained  of,  and  may  give  it  such  consideration,  together 
with  all  the  other  evidence  in  the  case,  as  the  jury  may  deem 
proper. 

The  mere  violation  of  the  law  of  the  road,  as  prescribed  by 
ordinance,  or  by  the  common  law,  does  not  give  rise  to  a 
prima  facie  case  of  neglect  in  such  way  as  to  create  a  liability. 
The  question  is  whether  the  violation  of  such  a  duty  constitutes 
negligence  and  whether  it  did  in  fact  proximately  cause  the 
injury.  If  the  jury  find  that  such  violation  of  duty  did  proxi- 
mately cause  the  injury,  your  finding  should  be  in  favor  of 
the  plaintiff,  provided  you  find  that  such  violation  of  duty  was 
the  direct,  immediate  and  proximate  cause  of  the  injury.  But 
if  you  should  find  that  such  violation  of  duty  did  not  directly 
cause  the  injury,  but  that  notwithstanding  such  violation  of 
duty  by  the  defendant,  the  plaintiff  himself  could  have  avoided 
the  injury  to  him  by  the  exercise  of  ordinary  care  on  his  part, 
then  the  defendant  would  not  be  responsible,  and  the  plaintiff 
in  such  case  could  not  recover. 


1194  INSTRUCTIONS  TO  JURY. 

Sec.  1536.    Operator  of  auto  may  assume  persons  at  street 
crossing  will  exercise  ordinary  care. 

An  operator  of  an  automobile  has  a  right  to  assume,  and  to 
act  upon  the  assumption,  that  every  person  whom  he  meets  in 
the  streets  or  at  street  crossings  will  also  exercise  ordinary  care 
and  caution  according  to  the  circumstances,  and  that  others 
traveling  on  the  street  on  a  wheel  or  bicycle  will  not  recklessly 
expose  themselves  to  danger,  but  will  rather  make  an  effort  to 
avoid  it.  If  an  operator  of  an  automobile  discovers  that  a 
person  whom  he  is  approaching  or  whom  he  meets,  or  who  is 
approaching  in  a  position  of  disadvantage  and  will  probably 
have  difficulty  in  avoiding  the  coming  automobile,  the  driver  of 
the  latter  is  required  to  exercise  ordinary  care  under  the  cir- 
cumstances to  avoid  injuring  him. 

Sec.  1537.     Driver  of  auto  and  of  other  vehicle  both  negligent 
— Concurrent  negligence — Proximate  cause. 

If  the  jury  find  that  both  plaintiff  and  defendant  were  guilty 
of  negligence,  and  that  the  negligence  of  both  was  contempor- 
aneous and  continuing  until  after  the  injury,  and  that  the  negli- 
gence of  each  was  a  direct  cause  of  the  injury,  without  which  it 
would  not  have  occurred,  the  plaintiff  may  not  recover,  and  your 
verdict  should  be  for  the  defendant.  But  if  you  find  that  the 
negligence  of  the  plaintiff,  if  he  was  guilty  of  negligence  was 
not  contemporaneous  and  continuing,  as  stated,  you  will  then 
determine  whether  the  negligence  of  the  plaintiff  or  that  of  the 
defendant  was  the  proximate  cause  of  the  injury. 

The  law  regards  only  the  proximate  cause,  attaching  legal 
consequences  thereto,  consequently  the  jury  must  understand 
the  meaning  of  the  term.  Proximate  cause  of  an  injury  is  that 
cause  which  is  a  natural  and  continuous  sequence  unbroken  by 
any  new,  independent  cause,  produces  the  injury,  and  without 
which  the  injury  would  not  have  occurred.  Under  the  rules 
given  you  concerning  the  alleged  negligence  of  both  plaintiff 
and  defendant,  the  jury  is  instructed  that  if  it  should  find  that 
the  plaintiff  was  guilty  of  negligence  in  any  of  the  particulars 


UTOMOBILES — INJURY   BY.  1195 

charged,  and  that  the  defendant  was  also  guilty  of  negligence 
but  that  the  negligence  of  plaintiff  was  not  contemporaneous 
and  continuing  with  that  of  the  defendant,  and  that  plaintiff's 
negligence,  without  the  intervention  of  the  negligent  acts  of  the 
defendant,  would  not  have  produced  the  injury,  and  that  the 
negligence  of  the  defendant  in  such  case  was  a  new  and  indepen- 
dent cause  without  which  the  injury  would  not  have  occurred, 
and  that  the  same  produced  the  injury,  your  verdict  should  he 
for  the  plaintiff.  But  if  you  find  that  the  negligence  of  the 
plaintiff  was  not  concurrent  with  that  of  the  defendant,  and 
that  there  was  no  intervening  new  and  independent  negligence 
of  the  defendant  producing  the  injury,  but  that  the  negligent 
acts  of  the  plaintiff  produced  the  injury,  your  verdict  should 
be  for  the  defendant.1 
i  Drown  v.  Traction  Co.,  73  O.  S.  230. 

Sec.  1538.  Whether  driver  of  auto  acting  as  agent  or  servant 
of  owner — Or  whether  person  hired  it  for 
himself  and  operating  it  for  himself  alone. 

It  is  not  claimed  that  the  defendant  Mr.  M.,  was  in  the  auto- 
mobile which  collided  with  the  automobile  in  which  the  plaintiff 
was  riding.  Before  the  defendant  can  be  held  liable  in  damages 
it  must  appear  by  the  greater  weight  of  the  evidence,  that  the 
driver  of  the  defendant's  automobile  was  at  the  time  of  the 
accident  acting  as  the  agent  or  servant  of  the  defendant,  and 
within  the  scope  of  his  employment  as  such  agent  or  servant. 
If  at  the  time  of  the  collision  the  driver  of  the  defendant's 
automobile  was  not  operating  the  automobile  in  the  service  of 
the  defendant,  but  had  in  fact  hired  the  automobile  from  the 
defendant  and  was  at  the  time  operating  it  for  himself  alone,, 
and  not  as  the  servant  or  agent  of  the  defendant,  then  that  will 
be  an  end  of  your  deliberations  and  your  verdict  must  be  for 
the  defendant,  because  if  H.  B.  had  hired  the  automobile  from 
the  defendant,  and  was  using  it  solely  for  his  own  use  and 
pleasure  at  the  time  of  the  accident,  and  not  as  the  agent  and 
servant   of   the   defendant,   and   for  the   defendant's   use  and 


1196  INSTRUCTIONS  TO  JURY. 

benefit,  then  the  plaintiff's  right  of  action  is  against  H.  B.  and 
not  the  defendant  in  this  case.  And  that  is  true  although  M. 
might  have  allowed  him  to  hire  and  use  the  machine  because  he 
knew  he  could  handle  it  properly.  But  if  you  find  the  fact  to 
be  that  the  driver  of  the  automobile  was  at  the  time  of  the 
accident  acting  as  the  agent  and  servant  of  the  defendant, 
and  within  the  scope  of  his  employment  by  the  defendant,  you 
will  proceed  to  inquire  whether  the  driver  of  the  defendant's 
automobile  was  guilty  of  negligence  in  the  running  of  the 
defendant's  automobile,  and  whether  that  negligence  was  the 
proximate  cause  of  the  collision  and  consequent  injury  to  the 
plaintiff.  These  two  vehicles  which  came  in  collision  both  had 
the  same  right  in  the  highway  at  the  intersection  of  these  two 
streets.  It  was  the  duty  of  the  driver  of  each  of  the  vehicles 
to  exercise  reasonable  and  ordinary  care  to  avoid  a  collision 
with  the  other.1 

i  Jewett  v.  Murnan,   Com.   PI.  Court,   Franklin  Co.,  Bigger,   J. 

Sec.  1539.  Equality  of  right  of  street  railway  and  driver  of 
automobile — Relative  duties  of  each — Famil- 
iarity of  driver  with  crossing. 

It  is  the  law  that  a  street  railway  company  and  a  person 
driving  an  automobile  in  the  streets  of  the  city  had  equal  rights 
therein.  It  is  sometimes  said  that  neither  has  the  superior 
right  and  that  their  rights  are  both  equal.  But  tins  equality  of 
right  from  the  very  nature  of  things  can  not  give  them  both 
the  right  to  use  and  occupy  the  same  part  of  the  street  at  the 
same  time.  And  sometimes  the  one  must  give  way  to  the  other 
in  reason  and  in  sense. 

This  so-called  equality  of  right  has  its  qualifications  and 
limitations.  If  it  appears  that  one  or  the  other  has  obtained  an 
apparent  precedent  right  over  the  other  by  actual  occupancy 
and  use  of  a  portion  of  the  street,  or,  if  it  appears  that  either 
party  has  made  the  first  move  in  the  direction  of  the  use  of  a 
street  and  has  made  an  earlier  start  toward  such  use  which  is 
apparent  to  another  using  ordinary  care  to  observe  that  fact, 


AUTOMOBILES INJURY   BY.  1197 

under  such  circumstances  as  to  make  it  readily  and  ordinarily 
apparent  to  the  other  that  he,  too,  can  not  use  that  portion  of 
the  street  in  safety,  then  may  it  be  said  that  the  equality  of 
right  is  for  the  moment  suspended  and  the  one  who,  by  the  use 
of  ordinary  care  may,  or  should  observe  the  fact  of  the  prior 
use,  such  precedent  attempt  to  make  such  use  by  the  other  one, 
or  acts  on  his  part  showing  a  purpose  to  proceed  to  such  use 
under  such  circumstances  showing  that  such  use  must  for  the 
moment  be  exclusive,  then  such  other  person  must  yield  the  use 
of  the  street  to  the  one  and  must  not  attempt  to  make  use  of 
it  himself. 

Now,  gentlemen,  negligence  as  the  term  is  used  in  law,  is 
denned  in  a  simple  way — one  which  is  easily  understood  by 
anyone — as  the  failure  to  use  such  care  as  ordinarily  prudent 
persons  would  have  used  under  the  same  or  similar  circumstances. 

And  ordinary  care  is  likewise  denned  as  such  care  as  ordinary 
persons  would  use  under  such  circumstances.  Then  when  you 
undertake  to  apply  those  terms  to  each  case,  it  will  be  stated 
that  ordinary  care  as  applied  to  these  parties  here  is  such  care 
as  a  driver  of  an  automobile  would  have  exercised  under  the 
same  or  similar  circumstances  as  appear  in  this  case.  And  as 
applied  to  the  defendant  company,  ordinary  care  would  be  such 
care  as  an  ordinarily  prudent  motorman  would  have  observed 
under  the  same  or  similar  circumstances  as  appear  in  this  case. 

It  is  the  duty  of  the  operative  of  a  car  being  run  by  the 
defendant  company  to  run  it  at  a  reasonable  rate  of  speed,  and 
to  sound  a  gong  upon  the  approach  of  a  street  crossing,  and 
to  use  ordinary  care  to  have  the  car  under  such  reasonable 
control  as  would  enable  the  person  to  either  check  the  speed  of 
the  car  or,  if  necessary,  upon  discovering  the  danger  of  a  person 
in  the  street,  even  whether  that  person  is  acting  prudently  or 
not,  to  stop  the  car. 

On  the  other  hand,  it  is  the  duty  of  a  person  driving  an 
automobile,  on  approaching  the  street  crossing,  not  to  stop,  look 
and  listen  in  the  commercial  railroad  sense,  but  to  use  his 
faculties  of  sight  and  hearing  to  observe  whether  or  not  there 


1198  INSTRUCTIONS  TO  JURY. 

is  a  ear  approaching.  As  stated  to  you  in  the  special  instruc- 
tions, he  is  bound  to  take  into  consideration  the  fact  that  while 
the  street  railway  company  has  not  the  superior  right  of  way, 
yet  its  cars  can  not  move  to  the  right  cr  the  left  and  give  way 
to  a  pedestrian,  or  to  one  in  a  vehicle  as  readily  and  as  easily 
as  a  driver  of  an  automobile  or  a  pedestrian  may  give  way  to 
the  railway  company. 

And  it  may  also  be  said  that  anyone  who  is  familiar  with  any 
particular  crossing — anyone  who  is  living  in  a  city,  and  anyone 
who  has  frequently  gone  over  a  particular  crossing,  is  chargeable 
in  a  way  with  knowledge  that  he  thereby  obtains  with  reference 
to  the  characteristics  or  the  nature  of  that  particular  crossing, 
and  if  there  are  any  surrounding  conditions  and  circumstances 
that  are  unlike  other  crossings,  he  is  bound  to  take  notice  of 
these,  and  he  is  bound  to  keep  them  in  mind  and  to  observe 
ordinary  care  for  his  own  safety. 

At  the  same  time,  a  driver  of  an  automobile  has  the  right  to 
act  upon  the  assumption  that  a  driver  of  a  street  car  will  also 
observe  his  duties  and  that  he  will  also  observe  ordinary  care 
in  the  management  and  control  of  that  car,  and  that  he  will 
sound  the  gong,  and  that  he  will  run  it  at  a  reasonable  rate  of 
speed,  and  the  like.1 
i  Bates  v.  The  Columbus  Ey.  &  Lt.  Co.,  Franklin  Co.  Com.  PI.,  Kinkead,  J. 

Sec.  1540.     Duty  of  driver  of  auto  at  railroad  grade  crossing. 

The  jury  is  instructed  that  it  is  the  duty  of  the  driver  of  an 
automobile  when  approaching  railroad  tracks  at  a  grade  cross- 
ing, where  the  vision  is  obstructed,  to  stop,  look  and  listen,  and 
to  do  so  at  a  time  and  place  where  stopping  and  where  looking 
and  where  listening  will  be  effective.  So  that  it  follows  that  one 
who  drives  an  automobile  over  a  railroad  crossing  at  grade, 
without  stopping  his  machine  to  look  and  listen  at  a  point  where 
he  may  obtain  a  clear  view  is  guilty  of  neglect.1 

The  jury  will  determine  therefore,  etc. 

iBrommer  v.  Penn.  Co.,  179  Fed.  577,  29  L.  E.  A.   (N.S.)    925;  N.  Y.  C, 
etc.,  E.  Co.  v.  Maidment,  21  L.  E.  A.    (N.S.)   794,  168  Fed.  21. 


AUTOMOBILES INJURY    BY.  1199 

Sec.  1541.    Driver    of    automobile    placed    in    sudden    peril 
through  neglect  of  another. 

The  jury  is  instructed  that  where  a  driver  of  an  automobile 
is  placed  in  a  position  of  sudden  danger  or  peril  without  his 
fault,  but  by  reason  of  the  neglect  of  a  railway  company  at  a 
crossing  (or  street  intersection),  all  that  is  required  of  him  is 
that  he  use  ordinary  care  under  the  circumstances  in  acting  for 
his  own  safety;  if  he  does  not  select  the  very  wisest  course,  but 
makes  an  honest  mistake  of  judgment  in  such  sudden  emergency, 
such  mistake  will  not  constitute  negligence  on  his  part,  although 
it  may  appear  from  the  evidence  that  another  course  might  have 
been  better  and  safer. 

Whether  the  plaintiff  acted  with  ordinary  care  in  deciding 
the  course  to  be  taken  by  him  in  such  sudden  peril  is  for  the 
jury  to  determine.1 

i46  L.  R.  A.  (X.S.)  708,  note;  Xicol  v.  R.  &  Xav.  Co.,  71  Wash.  409,  43 
L.  R.  A.  (X.S.)  174,  128  Pac.  708;  Dickinson  v.  Erie  R.  Co.,  81 
X.  J.  L.  464,  37  L.  R.  A.  (X.S.)  150;  Railroad  v.  Snyder,  55  0.  S. 
342. 

Sec.  1542.  Injury  by  collision  between  two  automobiles — 
Plaintiff  charges  excessive  speed — Defendant 
counterclaims  for  injury  to  his  machine  by 
same  collision. 

1.  Statement  of  claims  of  plaintiff  and  defendant. 

2.  Burden  of  proof. 

3.  Credibility   of   witnesses — Testimony  and  evidence   dis- 

tinguished— Ultimate  fact  to  be  found. 

4.  Negligence  of  parties  to  be  determined— Negligence  in 

the  use  of  automobiles  in  city. 

5.  Duty  of  driver  in  approaching  street  intersection. 

6.  Drivers  of  automobiles,  required  to  observe  law  of  road. 

7.  Duty  as  to  speed. 

8.  Both  parties  claiming  relief,  but  one  can  recover. 

9.  Minor   son   of   defendant    driving   car,   his   authority — 

Liability  of  father  for  negligence  of  son. 


1200  INSTRUCTIONS  TO  JURY. 

10.  Same    continued — Automobile,    though     not    dangerous 

instrumentality,  still  may  become  so,  if  recklessly  driven 
Effect  of  legislative  regulations. 

11.  Same  continued — Implied  authority  by  father  to  son  to 

use  and  drive  auto. 

12.  Same  continued — Jury  to  determine  whether  negligence 

of  either  plaintiff  or  defendant  caused  collision. 

13.  Same   continued — Contributory    negligence   and  concur- 

rent negligence  as  applied  to  case. 

14.  Precautionary  instruction  as  to  description  of  speed  by 

witnesses. 

15.  Direction  as  to  verdict. 

1.  Statement  of  claims  of  plaintiff  and  defendant.  The  plain- 
tiff brings  her  action  for  injury  to  her  automobile,  stating  that 

she  was  driving  along  State  street  in ,  ,  at  about,  six 

p.  m.,  and  that  the  defendant  drove  a  certain  automobile  at  a 
high  and  reckless  speed,  at  the  rate  of  thirty-five  miles  an  hour, 
without  giving  any  signal  or  warning  of  the  approach  of  the 
car  toward  the  West  State  street  crossing,  southbound  on  Center 
street,  and  that  the  automobile  of  the  defendant  struck  that  of 
the  plaintiff  with  great  force  and  violence  the  right  front  of 
plaintiff's  automobile,  wholly  without  fault  or  negligence  on  the 
part  of  the  plaintiff. 

The  petition  then  describes  the  injuries  which  plaintiff  claims 
were  done  to  her  machine  and  claims  damages  in  the  sum  of 


The  attitude  of  the  defendant  with  reference  to  that  claim 
is  one  of  complete  denial;  that  is,  he  denies  each  and  every 
allegation  in  the  plaintiff's  petition  contained.  That  is,  he 
denies  that  the  person  in  charge  of  his  machine  was  guilty  of 
any  negligence  whatever.  And  then  he  sets  forth  a  counter- 
claim in  tort,  alleging  negligence,  and  claiming  damage. 

2.  Burden  of  proof.  The  burden  of  proof  is  on  the  plaintiff 
to  establish  by  a  preponderance  of  the  evidence  her  claims ;  that 
is,  that  the  defendant  was  negligent  in  the  particulars  charged, 
and  that  such  negligence  was  the  sole  and  proximate  cause  of 


AUTOMOBILES — INJURY    BY.  1201 

the  injury  to  her  machine.  The  burden  is  upon  her  to  show  that 
she  was  without  any  fault ;  that  she  was  not  guilty  of  any  negli- 
gence herself  which  was  a  contributing  cause  to  her  injury,  but 
that  on  the  contrary,  the  injury  was  caused  solely  and  only  by 
the  negligence  of  the  defendant.  This  she  must  do  by  a  pre- 
ponderance, or  the  greater  weight  of  the  evidence.  That  term 
has  been  defined  to  you  so  many  times  that  you  fully  under- 
stand it  without  further  explanation.  You  need  only  to  bear 
in  mind  that  it  does  not  mean  the  greater  number  of  witnesses 
but  it  means  the  greater  weight  of  the  evidence  that  comes  from 
the  mouths  of  the  witnesses  on  the  witness  stand. 

Now  on  the  other  hand,  the  burden  of  proof  rests  upon  the 
defendant  to  not  only  show  that  the  injury  to  his  machine  was 
not  caused  by  his  own  negligence,  but  that  it  was  caused  by 
the  sole  and  only  negligence  of  the  defendant.  And  this  he 
must  establish  by  the  preponderance  or  the  greater  weight  of 
the  evidence. 

3.  Credibility  of  witnesses — Testimony  and  evidence  dis- 
tinguished—Ultimate fact  to  be  found.  The  credibility  of  the 
witnesses  must  be  determined  by  the  jury. 

In  a  conflict  of  testimony  it  becomes  the  province  of  the  jury 
to  weigh  and  consider  what  each  witness  testifies  to;  consider 
its  probability  or  its  improbability  under  the  circumstances  of 
the  case ;  the  opportunity  of  the  witnesses  to  learn  and  know  the 
things  to  which  they  testify,  the  attention  and  location  of  the 
witnesses  to  the  matters  in  question  and  in  dispute;  their  ap- 
parent demeanor  on  the  witness  stand,  their  attitude  in  giving 
their  testimony,  their  relations  to  the  parties.  You  may  con- 
sider whether  or  not  any  of  them  show  bias  or  partiality  or  preju- 
dice to  either  side. 

The  jury  is  under  no  obligation  to  believe  the  statements  of 
a  witness  merely  because  he  has  made  them,  because  your  prov- 
ince here  gentlemen,  is  to  determine  what  credence  you  will 
give  the  testimony  of  witnesses.  If  you  think  under  .ill  the 
circumstances  developed  in  the  case  that  any  witness  lias  given 
testimony  that  seems  improbable  under  all  the  circumstances,  it 


1202  INSTRUCTIONS  TO  JURY. 

is  within  your  province  and  duty  to  east  that  aside  and  out  of 
your  mind.  If  you  are  of  the  opinion  that  a  witness  has  given 
testimony  which  is  false  in  part  and  true  in  part,  you  will 
give  it  due  weight  accordingly. 

Bear  in  mind,  gentlemen,  that  testimony  is  what  is  given  by 
the  witnesses  from  the  witness  stand;  evidence  constitutes  that 
which  remains  in  the  case  after  the  jury  has  carefully  sifted 
and  weighed  the  testimony  given  by  the  witnesses  and  has  deter- 
mined its  credibility  and  has  determined  how  much  of  it  you 
will  act  upon  or  receive  and  consider,  and  how  much  of  it  you 
will  reject.  And  when  you  have  gone  through  that  process  of 
sifting  the  evidence  and  eliminating  any  part  of  it  that  you  may 
deem  proper,  then  it  will  become  your  duty  to  draw  from  the 
evidence  what  we  call  in  law  the  ultimate  fact ;  that  is,  the  fact 
to  which  the  law  which  will  be  given  you  by  the  court  is  to 
be  applied. 

Now  the  ultimate  fact,  or  the  fact  which  is  involved  in  this 
case  on  the  plaintiff's  side  is  whether  or  not  the  defendant  was 
guilty  of  a  wrongful  act,  a  violation  of  a  duty  which  was  the 
cause  of  her  injury;  whether  or  not  she  herself  was  free  from 
fault.  The  ultimate  fact  on  the  side  of  the  defendant  is  whether 
or  not  his  machine  was  injured  by  the  wrongful  act  of  the  plain- 
tiff, and  whether  or  not  he  was  without  negligence  on  his  part. 

But  one  of  the  parties  can  recover,  but  the  court  instructs  you 
as  to  the  law  bearing  upon  the  respective  claims  made  by  each 
side  so  as  to  enable  you  to  apply  it  to  the  evidence  in  drawing 
therefrom  the  ultimate  fact,  and  finally  by  your  verdict  to 
determine  what  is  the  ultimate  fact.  While  the  court  gives  you 
the  law,  still  your  verdict  in  a  way  is  a  finding  of  mixed  law 
and  fact. 

4.  Negligence  of  parties  to  he  determined — Negligence  in  the 
use  of  automooiles  in  a  city.  The  jury  will  first  determine 
whether  either  one  or  both  of  the  parties  were  guilty  of  negli- 
gence; whether  either  one  was  guilty  of  negligence  will  depend 
upon  the  duties  and  obligations  which  the  law  imposes  upon 
each  one. 


AUTOMOBILES — INJURY    BY.  1203 

Negligence  is  defined  to  be  the  failure  of  a  person  to  exercise 
the  degree  or  measure  of  care  required  of  him  by  the  law  under 
the  facts  and  circumstances  of  the  case  presented. 

In  the  use  of  an  automobile  in  the  streets  of  a  city,  the 
person  in  charge  thereof  and  driving  the  same  is  required  to 
use  ordinary  care  in  the  management  and  control  of  the  same 
to  avoid  injury  by  collision  to  and  with  another  machine  which 
is  being  driven  in  the  street  at  the  same  time. 

The  ordinary  care  required  is  such  care  as  persons  of  ordinary 
care  use  and  observe  in  the  driving,  management  and  control 
of  an  automobile  under  similar  circumstances  and  conditions  to 
those  which  are  disclosed  by  the  evidence  in  this  case. 

This  measure  of  care  contemplates  taking  into  consideration 
the  nature  and  character  of  the  machine,  its  ordinary  use,  the 
ordinary  manner  of  driving  and  controlling  it  so  as  to  avoid 
collision  with  other  autos  being  driven  in  the  streets,  at  street 
intersections. 

5.  Duty  of  driver  in  approaching  street  intersection.  Each 
person  who  is  driving  an  auto  in  approaching  a  street  crossing 
and  intersection,  at  and  over  the  same,  is  bound  to  observe  the 
laws  of  speed  as  regulated  by  statute,  and  is  required  to  be  on 
the  lookout  for  other  automobiles  which  may  be  driven  on  the 
other  street  which  intersects  with  the  one  on  which  he  is  driving ; 
such  person  is  bound  to  observe  ordinary  care  by  keeping  his 
machine  under  reasonable  control  so  as  to  avoid  collision  with 
another  auto  which  may  be  passing  over  such  street  intersection 
at  or  about  the  same  time. 

The  rule  requiring  drivers  of  autos  in  approaching  street 
crossings  or  intersections  to  have  the  same  under  reasonable 
control  so  as  to  guard  against  collision  with  other  autos  as 
stated  applies  to  both  parties  in  this  case.  The  driver  of  an 
automobile  must  exercise  his  rights  in  driving  in  the  streets 
with  a  due  regard  for  others  using  the  streets  in  the  same 
locality.1 

6.  Drivers-  of  autos  required  to  observe  law  of  the  road: 
Another    duty    and    obligation    required    of    drivers    of    autos, 


1204  INSTRUCTIONS  TO  JURY. 

and  which  is  and  was  applicable  to  both  parties  in  this  case,  is 
that  they  shall  observe  the  law  of  the  road.  The  law  of  the  road 
is  fixed  by  statute  in  this  case.2  It  requires  drivers  of  vehicles, 
which  embraces  automobiles,  to  keep  to  the  right  so  as  to  leave 
one-half  of  the  road  free.  It  also  requires  drivers  of  automobiles 
on  meeting  another  automobile,  to  keep  to  the  right  so  as  to 
leave  two-thirds  of  the  road  tree.  The  violation  of  the  statute 
fixing  the  rule  of  conduct  concerning  "the  law  of  the  road," 
constitutes  a  prima  facie  case  of  liability,  but  it  is  not  con- 
clusive; it  is  of  course  rebuttable. 

The  violation  of  the  law  of  the  road  as  thus  stated  to  con- 
stitute actionable  negligence,  that  is,  to  give  cause  for  legal 
redress,  must  be  shown  by  the  evidence  to  have  been  a  direct 
or  proximate  cause  of  the  injury  complained  of.  The  mere 
violation  of  the  law  of  the  road  which  has  nothing  to  do  with 
the  cause  of  the  injury  will  not  give  rise  to  legal  liability.3 

7.  Duties  as  to  speed.  I  read  to  you  now,  gentlemen,  in  sub- 
stance, the  two  statutes  that  regulate  the  matter  of  speed,  which 
constitutes  the  law  of  Ohio  on  that  subject. 

One  provides  4  that  a  person  who  operates  a  motor  vehicle  on 
the  public  roads  or  highways  at  a  speed  greater  than  is  reason- 
able or  proper,  having  regard  for  width,  traffic,  use  and  the 
general  and  usual  rules  of  such  road  or  highway,  or  so  as  to 
endanger  the  property,  life  or  limb  of  any  person,  is  guilty  of 
a  misdemeanor. 

The  other  one 5  provides  that  whoever  operates  a  motor 
vehicle  at  a  greater  speed  than  eight  miles  an  hour  in  the 
business  and  closely  built  up  portions  of  a  municipality,  or  more 
than  fifteen  miles  an  hour  in  other  portions  thereof,  shall  be 
guilty  of  a  misdemeanor. 


i  Hennigan  v.  Wright,  5  Pennew.  Del.  Rep.  537;  Christy  v.  Elliott,  216 
111.  31,  108  Am.  St.  196;  Mclntire  v.  Oraer,  166  Ind.  57,  117  Am. 
St.  359. 

2  Gen.  Code,  sec.  6310. 

3  Violation  of  the  law  of  road  is  evidence  of  negligence,  but  not  conclusive. 

Newcomb  v.  Boston  Prot.  Dept.,  146  Mass.  600.     See  Babbitt  Motor 
Vehicles,  sees.  248,  939b. 

4  Gen.  Code,  sec.  12603. 
6  Gen.  Code,  sec.  12604. 


AUTOMOBILES — INJURY    BY.  1205 

These  two  provisions  apply  to  the  driving  of  an  automobile 
in  the  streets  of  a  city,  because  the  highways  apply  alike  to 
streets  and  country  roads.  It  is  to  be  observed,  and  the  jury 
will  keep  in  mind  in  considering  the  evidence,  and  deducing 
therefrom  the  ultimate  fact  relating  to  the  conduct  of  the  parties, 
the  fact  that  the  rule  of  conduct  which  the  Legislature  has  pre- 
scribed as  applicable  to  the  speed  of  automobiles,  is  that  no 
person  shall  drive  at  a  greater  speed  than  is  reasonable  or  proper, 
and  that  in  driving  such  vehicles  the  driver  must  take  into 
consideration  the  widtli  of  the  streets,  the  traffic  therein,  as  well 
as  the  "law  of  the  road"  socalled.  You  will  observe  that  the 
statute  makes  a  separate  injunction  that  one  shall  not  drive 
an  auto  so  as  to  endanger  the  property  of  another. 

In  addition  to  the  foregoing  specific  injunction  as  to  the 
conduct  of  parties  driving  such  vehicles  is  the  statute  as  to 
speed  which  forbids  driving  at  a  greater  rate  than  eight  miles 
an  hour  in  the  business  and  closely  built  up  portions  of  a  city, 
and  not  more  than  fifteen  miles  in  other  portions. 

It  is  a  rule  of  law  that  because  such  a  rule  of  conduct  as  that 
just  mentioned  is  prescribed  by  a  legislative  enactment,  it  is  to 
be  regarded  as  a  standard  of  duty  which  is  binding  on  every- 
body, and  especially  is  a  rule  of  conduct  which  courts,  and  that 
means  court  and  jury,  must  apply  and  follow.  Therefore,  the 
rule  is  that  proof  of  the  violation  of  statutory  rules  of  conduct, 
such  as  the  above,  constitutes  what  is  termed  in  law  a  prima 
facie  liability.  That  is,  in  the  absence  of  proof  to  the  contrary, 
case  would  be  entitled  to  recover. 

In  this  case  the  so-called  prima  facie  case,  if  any  there  is 
in  favor  of  either  party,  and  that  is  for  the  jury  to  determine,  is 
disputed.  Hence,  without  regard  to  the  effect  of  the  prima  facie 
case  rule,  the  jury  must  look  to  all  the  facts  and  circumstances 
and  determine  therefrom  the  ultimate  fact;  that  is,  what  rate 
of  speed  either  or  both  the  parties  were  going.  "Whether  it  was 
excessive,  and  if  so,  whether  the  fact  that  either  one  or  both  of 
such  machines  was  being  driven  at  an  unreasonable  or  improper 
or  excessive  speed,  or  so  as  to  endanger  property,  was  a  direct 


1206  INSTRUCTIONS  TO  JURY. 

or  proximate  cause  of  either  injury  complained  of  by  either 
party. 

You  will  determine  whether  the  failure  of  duty,  if  there  was 
a  failure  of  duty,  on  the  part  of  either  party  was  the  direct 
cause  of  injury,  or  whether  the  injury  was  caused  by  the  failure 
to  have  the  cars  under  reasonable  control,  or  because  there  was 
a  violation  of  the  law  of  the  road. 

The  court  has  now  stated  the  law  and  the  rules  of  conduct 
required  of  both  plaintiff  and  defendant  in  this  case,  which  you 
are  to  apply  in  your  deductions  of  the  facts  from  the  evidence, 
in  order  to  place  the  responsibility,  if  any  there  is,  on  either 
party,  according  to  the  law  and  the  evidence. 

8.  Both  parties  claiming  relief — But  one  can  recover.  As 
both  parties  are  claiming  relief,  that  is,  as  each  one  is  asserting 
a  cause  of  action  in  tort  against  the  other,  it  follows  that  only 
one  can  recover,  if  either  has  the  right  to  recover  at  all  under 
the  law  and  evidence. 

Plaintiff  can  not  recover  if  she  herself,  through  her  agents, 
was  guilty  of  negligence  directly  contributing  to  the  injury  to 
her  car. 

Nor  can  the  defendant  recover  against  plaintiff  if  his  son, 
who  was  driving  the  car,  was  negligent,  and  if  defendant  became 
responsible  for  his  conduct  by  implication  or  otherwise,  as  shown 
by  the  facts  and  circumstances  as  disclosed  by  the  evidence. 

9.  Minor  son  of  defendant  driving  car — His  authority — Lia- 
bility of  father  for  negligence  of  his  son.  The  court  will  now 
instruct  the  jury  concerning  the  relation  of  the  son  of  defendant 
to  himself — that  is  to  the  defendant. 

As  to  the  relation  between  defendant  and  his  son  who  was 
driving  his  machine,  the  ordinary  rule  of  law  is  that  a  father 
is  not  liable  for  the  independent  tort  of  his  son,  unless  the  son 
sustains  the  relation  of  agent  to  his  father  concerning  the  par- 
ticular service  or  act  involved  and  under  investigation. 

The  natural  tie  of  relation  between  father  and  son  does  not 
of  itself  give  rise  to,  or  create  the  relation  of  agency,  or  of 
master  and  servant  between  them.  There  must  be  something 
more  than  that  in  order  to  show  that  a  son  is  authorized  to 


AUTOMOBILES — INJURY    BY.  1207 

drive  an  automobile  under  circumstances  such  as  may  appear 
in  this  case. 

Nor  can  the  inference  of  agency  be  drawn  from  the  mere  fact 
that  the  son  had  possession  of  the  machine  and  was  driving  it  at 
the  time  in  question. 

The  owner  of  an  automobile  is  not  liable  for  an  injury  result- 
ing from  the  negligent  operation  of  the  machine  by  his  son 
unless  the  father  either  had  knowledge  of  the  possession  and 
operation  of  the  machine  by  the  son,  or  unless  the  father  had 
given  his  consent  expressly  or  impliedly  that  his  son  may  drive 
the  machine  for  the  use  and  benefit  of  his  family  as  well  as  for 
the  use  and  benefit  of  the  son  himself.0 

10.  Same  continued — Automobile,  though  not  dangerous 
instrumentality,  still  may  become  so,  if  recklessly  driven — Effect 
of  legislative  regulations.  While  an  automobile  is  a  lawful 
means  of  conveyance  in  streets  and  highways ;  and  while  it  is 
not  a  dangerous  device  in  the  common-law  sense,  that  is,  like  a 
firearm  or  other  dangerous  agency,  inherently  dangerous,  and 
being  an  ordinary  vehicle  of  pleasure  and  business,7  still  by 
reason  of  its  power  and  weight  it  may  become  so  if  carelessly 
or  recklessly  driven  and  managed.  Because  of  the  fact  that  the 
legislature  in  the  interest  of  public  safety  has  seen  fit  to  pre- 
scribe rules  as  to  speed  and  other  regulations  for  the  protection 
of  persons  and  property,  prescribing  criminal  penalties  for 
violations,  it  is  incumbent  upon  courts  in  adjusting  rights  and 
liabilities  on  the  civil  side  as  between  parties  to  adopt  and  apply 
rules  of  conduct  looking  to  the  safety  of  life  and  property,  it 
would  seem  from  the  provisions  of  the  law  concerning  the  con- 
duct and  management  of  automobiles  that  they  have  been  put 
in  a  class  of  agencies  which,  though  not  inherently  dangerous, 
that  still  they  may  become  so  unless  they  are  operated  and 
managed  with  reasonable  care  commensurate  with  the  dangers 
incident   to   their   running  at   places   in   a  municipality    where 


«  Reynolds  v.  Buck,   127  Iowa,  601;    Maher  v.  Benedict,  108  N.  Y.  Supp. 

228;    Smith  v.  Davenport,  45  Kan.  423,  23   Am.  St.  7:17:     Babbitl 

Motor   Vehicle,  sec.  551. 
'Cunningham  v.  Castle,   127  N.  Y.  App.  Div.  580,   111   X.  V.  Supp.   1057. 


1208  INSTRUCTIONS  TO  JURY. 

caution  and  prudence  is  required  to  avoid  danger  to  persons 
and  property. 

11.  Same  continued — Implied  authority  by  father  to  son  to 
use  and  drive  auto.  The  court  is  of  the  opinion  that  the  ordinary 
rule  of  master  and  servant,  which  relation  may  exist  between 
parent  and  child,  where  the  former  gives  express  orders  to  do  a 
particular  thing,  will  not  apply  in  all  its  force  to  the  facts  and 
circumstances  as  they  may  be  developed  in  this  case.  And  the 
court  now  therefore,  instructs  the  jury  that  where  a  parent 
purchases  an  automobile  for  the  pleasure  and  use  of  his  family 
and  the  members  thereof,  and  where  from  the  conduct,  acts, 
statements  and  declarations  of  such  parent  touching  the  use  of 
such  machine,  a  purpose  or  intent  on  his  part  may  be  inferred 
to  authorize  his  minor  child  to  use  and  drive  such  automobile 
for  the  use  and  pleasure  of  himself,  that  is,  the  parent,  and  also 
of  such  minor  child  or  of  any  member  of  his  family,  then  in  such 
case  the  jury  may  infer  if  it  deems  proper  under  the  circum- 
stances, and  find  that  such  parent  impliedly  consented  that  his 
minor  child  had  authority  to  use  and  drive  such  machine  with- 
out previous  express  authority  being  given  in  any  particular 
instance.  If  under  such  circumstances,  the  father  keeps  such 
automobile  at  or  near  his  home,  and  under  his  control,  where 
his  minor  child  has  free  access  to  it,  and  if  such  minor  child 
resides  with,  and  is  under  the  control  of  the  parent,  and  if  the 
implication  of  authority  to  his  child,  if  there  is  any,  to  use  the 
auto  is  warranted  by  the  circumstances  and  conditions,  in  the 
opinion  of  the  jury,  it  is  then  the  duty  of  such  parent  to  adopt 
reasonable  precautions  against  an  improper  use  of  his  machine 
by  his  minor  child.8 

Hence  it  follows,  gentlemen,  from  this  statement  of  the  rule 
of  duty  which  the  court  adopts  for  the  direction  and  guidance 
of  the  jury  in  this  case,  that  if  you  conclude  and  find  that  the 


s  This  portion  is  an  innovation;  it  is  not  in  accord  with  the  rule  of  lia- 
bility as  visually  stated  which  holds  the  father  liable  only  when  the 
son  is  acting  as  the  agent  of  the  father.  It  is  thought  that  the 
father  ought  to  be  held  where  the  son  runs  an  auto  under  implied 
authority,  recklessly  and  carelessly. 


AUTOMOBILES — INJURY    BY.  1209 

son  of  the  defendant  had  implied  authority  from  his  father  to 
take  and  use  his  machine  for  his,  the  son's,  individual  use  and 
benefit,  and  that  such  son  was  guiltjr  of  negligence  in  the  manage- 
ment and  running  of  the  car  at  the  time  in  question,  the  defend- 
ant would  in  law  be  responsible  for  his  acts,  whether  he  had 
knowledge  of  the  fact  that  his  son  was  so  running  the  ear  at 
the  time  or  not. 

But  if  on  the  other  hand,  there  is  no  warrant  under  the  facts 
and  circumstances  disclosed  by  the  evidence  in  the  opinion  of 
the  jury  for  the  inference  of  implied  authority  from  defendant 
to  his  son  to  so  use  the  car,  or  if,  on  the  contrary,  defendant  had 
given  express  directions  to  his  son  not  to  take  out  or  use  the 
machine  for  his  individual  use  and  benefit  without  the  consent  of 
his  father,  in  such  case  the  defendant  would  not  be  responsible 
for  any  negligence  of  his  son,  on  the  occasion  of  the  injury  com- 
plained of,  if  he  was  guilty  of  negligence. 

If  such  should  be  the  conclusion  and  finding  of  the  jury 
on  the  question  of  authority  or  agency  of  the  son,  that  would  end 
your  deliberations  so  far  as  the  right  of  plaintiff  to  recover 
against  the  defendant,  because  in  such  case  she  could  not  recover 
unless  there  was  such  implied  authority  given  by  the  defendant 
to  his  son. 

12.  Same  continued — Jury  to  determine  whether  negligence  of 
either  plaintiff  or  defendant  caused  collision.  The  court  has  now 
stated  all  the  rules  of  law  applicable  to  the  respective  claims  of 
the  parties.  The  jury  will  bear  in  mind  that  the  court  states 
the  law  applicable  to  the  claims  made  by  plaintiff  as  to  speed, 
and  the  evidence  offered  in  support  thereof,  and  also  to  the  claim 
of  defendant  concerning  the  negligence  charged  against  the 
plaintiff. 

You  will  sift  the  testimony,  select  what  you  deem  worthy  of 
credence  and  belief,  and  deduce  therefrom  by  the  aid  of  the  law 
given  you  by  the  court,  the  ultimate  Pact  as  to  whether  plaintiff 
was  free  from  negligence,  and  defendant  was  negligent,  or 
whether  defendant  was  not  negligent  and  the  plaintiff  was  guilty 
of  negligence.  In  other  words,  you  are  to  search  for  and  deter- 
mine what  was  the  proximate  cause  of  the  collision  and  injury. 


1210  INSTRUCTIONS  TO  JURY. 

Was  it,  as  claimed,  due  solely  and  alone  to  excessive  speed  of 
the  defendant,  or  was  it  due  solely  and  alone  to  negligence  of 
the  plaintiff  by  running  on  the  wrong  side  of  the  street,  or  in 
failure  to  use  his  senses  in  discovering  the  danger  of  the  col- 
lision, and  in  failing  to  adopt  reasonable  care  and  means  to 
stop  his  car  to  avoid  collision  ? 

You  may,  if  the  evidence  so  warrants,  in  your  opinion,  base 
your  conclusion  on  matters  other  than  the  fact  as  to  which  car 
ran  into  the  other.  The  question  is  whose  fault  was  it  that  the 
two  cars  collided.  It  was  the  duty  of  each  to  avoid  collision, 
whether  either  or  both  was  careless  or  negligent,  that  is,  conceding 
for  the  sake  of  illustration  that  one  or  the  other  was  guilty  of 
negligence.  Notwithstanding  that  fact,  it  was  the  duty  of  the 
one  who  may  not  have  been  negligent  to  have  observed  ordinary 
care  for  his  own  safety  after  having  discovered  the  negligence  of 
the  other  party,  or  one  who  should  have  discovered  it  by  the 
exercise  of  prudence  and  care. 

If  defendant  was  running  at  an  excessive  rate  of  speed,  and 
plaintiff  saw  or  could  have  seen  the  car  of  the  defendant  in 
time,  it  was  her  duty,  by  the  exercise  of  ordinary  care  and  the 
means  at  hand  to  stop  her  car,  and,  if  she  failed  to  do  so, 
plaintiff  can  not  in  such  case  recover.  She  can  only  recover, 
provided  she  was  not  at  fault  or  did  not  contribute  to  her  own 
injury,  if  the  defendant  ran  at  an  excessive  rate  of  speed  and 
that  was  the  cause  of  the  injury. 

Defendant  can  only  recover  if  being  without  contributory 
fault,  the  plaintiff  negligently  ran  into  his  machine. 

Neither  may  recover  if  either  was  guilty  of  contributory 
negligence,  or  if  both  were  guilty  of  concurrent  negligence. 

13.  Same  continued — Contributory  negligence  and  concurrent 
negligence  as  applied  to  case.  Contributory  negligence  is  negli- 
gence on  the  part  of  one  claiming  relief  against  another,  where 
both  are  guilty  of  some  negligence,  but  the  contributory  negli- 
gence of  the  complainant  is  nearer  in  point  of  time  or  of  cause 
and  effect  in  producing  the  injury.  That  is,  it  causes  the 
injury  and  defeats  recovery.  So  contributory  negligence  on  the 
part  of  either  will  defeat  their  recovery.    Concurrent  negligence 


AUTOMOBILES INJURY    BY. 


1211 


as  I  mentioned  the  term  a  while  ago,  which  will  bar  recovery, 
may  be  put,  and  is  put  by  the  law  in  this  state  in  the  following 
language:  If  both  the  plaintiff  and  the  defendant  were  negli- 
gent, and  the  negligence  of  both  directly  contributed  to  produce 
the  injury,  neither  the  plaintiff  nor  the  defendant  has  any  right 
to  recover,  and  you  should  in  such  case,  render  a  verdict  against 
both  parties.9 

14.  Precautionary  instruction  as  to  description  of  speed  by 
witnesses.  The  court  gives  you  a  precautionary  instruction  con- 
cerning the  description  by  the  witnesses  as  to  the  rate  of  speed. 
Concerning  the  rate  of  speed,  you  are  permitted  to  enter  the 
realm  of  probabilities,  that  is,  the  jury  deals  in  probabilities. 
Absolute  certainty  is  not  always  expected,  nor  is  it  always 
possible.  But  the  jury  is  not  permitted  to  enter  into  the  field 
of  speculation  in  arriving  at  your  verdict,  In  arriving  at  your 
verdict  you  must  be  governed  by  the  testimony  and  not  by  any 
speculation  or  conjecture  of  your  own. 

Witnesses,  expert  and  non-expert,  may  express  their  views 
and  opinions  for  the  consideration  by  the  jury.  These  you  may 
weigh  carefully  in  the  light  of  all  the  conditions  and  circum- 
stances disclosed  by  the  evidence.  You  will  consider  the  view 
point  of  the  witness,  his  opportunity  to  judge  of  the  speed,  his 
relations  to  the  parties,  or  his  interest,  if  any.  You  should  con- 
sider whether  the  witness  was  specially  attentive  or  indifferently 
attentive,  whether  it  was  guess  or  conjecture,  or  an  opinion 
expressed  by  a  person  of  average  intelligence  in  a  position  to 
form  a  reasonable  estimate  of  speed.10 

In  this  connection  bear  in  mind  the  statutes  which  the  court 
read  to  you  which  both  fixes  the  maximum  rate  of  speed  beyond 
which  persons  are  not  permitted  to  go,  and  also  provides  that  a 
motor  vehicle  shall  not  be  operated  at  a  greater  rate  of  speed 
than  is  reasonable  or  proper. 

15.  Direction-  as  to  verdict.  Now,  gentlemen,  the  court  has 
stated  the  rules  of  law  for  your  guidance  and  application.  I 
now  finally  charge  you  as  to  the  verdict  which  you  may  render 

»  As  to  concurrent  negligence,  Drown  v.  Traction  Co.,  7:*  0.  S.  230. 
io  Nicholson    v.  Traction   Co.,    14   N.    P.    (N.S.)     187-8. 


1212  INSTRUCTIONS  TO  JURY. 

or  may  not  render,  according  as  you  may  find  the  facts  to  be. 
This  may  serve  to  clear  any  misunderstanding  that  you  may  have 
from  the  perplexities  of  the  questions  and  the  law. 

First.  If  you  find  plaintiff  not  guilty  of  negligence  proxi- 
mately causing  the  injury  to  her  machine  but  find  defendant 
guilty  of  negligence  which  was  the  sole  cause  of  plaintiff's 
injury,  then  your  verdict  should  be  for  the  plaintiff,  and  in  such 
case  you  should  assess  her  such  damages  as  you  will  find  from 
the  evidence  will  reasonably  compensate  her  for  the  injury 
sustained. 

Second.  If  you  find  defendant  not  guilty  of  negligence  proxi- 
mately causing  injury  to  him,  but  find  plaintiff  guilty  of  negli- 
gence which  directly  caused  the  injury  to  the  defendant,  your 
verdict  will  be  for  the  defendant,  and  you  should  in  such  case 
assess  him  such  damages  as  will  reasonably  compensate  him 
for  the  injury  by  him  sustained. 

Third.    But  if  you  find  that  both  plaintiff  and  defendant  were 
guilty  of  negligence  which  directly  contributed  to  the  injury 
which  each  sustained,  then  your  verdict  will  be  against  both  of 
them.    These  forms  of  verdict  will  be  placed  in  your  hands.11 
11  Park  v.  Smith.  Franklin  Co.  Com.  PI.,  Kinkead.  J. 

Sec.  1543.  Injury  to  passenger  in  automobile,  the  guest  of  one 
who  hires  from  owner  who  furnishes  chauf- 
feur to  drive — Liability  depending  upon  con- 
tract of  hiring,  as  well  as  upon  whether  driver 
is  engaged  in  the  service  and  business  of  the 
owner.1 
1.  Under  general  denial  plaintiff  bound  to  prove  use  of 
machine   by   hirer    within  bailment    of  hiring,  as   also 

iMcCatham  v.  Columbus  Transfer  Co.,  Franklin  Co.  Com.  PL,  Kinkead,  J. 
The  machine  was  hired  to  go  to  Urbana  and  return  to  Columbus; 
on  the  return  the  machine  was  kept  out  by  one  of  the  parties  con- 
cerned in  the  hiring,  who  gathered  up  a  party  of  men  and  women, 
who  visited  wine  rooms,  taking  liquors  with  them  in  the  machine. 
No  report  to  the  garage  was  made  after  return  from  Urbana,  though 
the  machine  was  driven  to  the  place  of  defendant  to  obtain  gaso- 
line late  in  the  evening,  but  the  evidence  did  not  directly  show  that 
knowledge  of  this  fact  was  brought  to   defendant. 


AUTOMOBILES INJURY  BY.  1213 

3.  Plaintiff  must  show  chauffeur  to  have  been  within  the 

business  of  owner. 

4.  Intoxication  of  passengers,  and  chauffeur — Presence  of 

liquors  in  car  at  time  of  wreck — Contributory  negli- 
gence of  plaintiff  in  use  of  liquors,  so  as  to  be  unable 
to  use  ordinary  care — Circumstantial  evidence — 
Inferences. 

5.  Evidence  that  chauffeur  permitted  another  to  drive  car 

at  time  of  injury,  and  as  to  intoxication,  consisting  of 
declarations  as  part  of  res  gestae. 

6.  Scope   of   employment   and  service   of  chauffeur,   to  be 

determined  by  contract  of  hiring. 

7.  Assesment  of  damages — Fair  and  reasonable  compensa- 

tion to  both  defendant  and  plaintiff. 

1.  Under  general  denial  plaintiff  bound  to  prove  use  of 
machine  by  hirer  within  bailment  of  hiring,  as  also  that  chauffeur 
was  engaged  in  service  and  business  of  master.  The  general 
denial  made  by  defendant  to  the  plaintiff's  petition,  denies  the 
claim  that  the  contract  of  hiring  embraced  the  trip  on  which  the 
injury  occurred,  as  well  as  the  claim  of  the  plaintiff  that  the 
chauffeur  of  defendant  was  driving  the  car  at  the  time  of  the 
injury,  or  if  he  was  driving  it,  that  he  was  engaged  in  the 
business  of  the  defendant. 

The  burden  is  thereby  cast  upon  plaintiff  to  establish  the 
fact  that  the  automobile  was  being  run  and  operated  by  the 
chauffeur  of  defendant,  either  within  the  terms  and  conditions 
of  the  contract  of  hiring  thereof,  by  express  authority,  or  by 
and  under  the  implied  authority  and  consent  of  defendant  by 
proof  of  facts  and  circumstances  disclosing  such  authority,  as 
well  as  the  fact  that  the  chauffeur  was  engaged  in  the  service  and 
business  of  the  defendant. 

The  court  charges  you  that  where  an  owner  of  an  automobile 
hires  the  same  to  another,  and  furnishes  a  chauffeur  whom  it 
has  in  its  employ  whose  duty  it  is  in  such  service  to  drive  its 


1214  INSTRUCTIONS  TO  JURY. 

well  as  the  fact  that  the  chauffeur  was  engaged  in  the  service  and 
business  of  the  defendant. 

The  court  charges  you  that  where  an  owner  of  an  automobile 
hires  the  same  to  another,  and  furnishes  a  chauffeur  whom  it 
has  in  its  employ  whose  duty  it  is  in  such  service  to  drive  its 
(his)  machines  for  persons  hiring  the  same,  and  such  chauffeur 
is  driving  such  car  with  either  the  express  or  implied  authority 
and  consent,  and  he  is  guilty  of  negligence  in  operating  the  car 
causing  injury,  such  facts,  if  proven  raise  a  presumption  of, 
or  prima  facie,  liability  on  the  part  of  the  defendant  in  the 
absence  of  evidence  to  the  contrary.2 
2  White  Oak  Coal  Co.  v.  Eivoux,  88  O.  S.  31. 

But  the  rule  of  burden  of  proof  is,  that  though  plaintiff  may, 
when  making  out  his  (her)  case,  be  content  with  merely  pro- 
ducing sufficient  evidence  to  show  a  prima  facie  case  of  liability, 
still  if  defendant  in  its  (his)  defense  produces  evidence  sufficient 
to  countervail  the  presumption  or  prima  facie  case — that  is,  if 
the  evidence  of  defendant  is  of  equal  or  of  greater  weight — the 
burden  still  rests  upon  plaintiff  to  produce  evidence  of  greater 
weight  than  that  introduced  by  the  defendant,  because  the  law 
requires  her  (him)  on  the  whole  case  to  establish,  by  a  pre- 
ponderance of  the  evidence,  the  fact  that  the  chauffeur  of  the 
defendant  was  driving  the  car  at  the  time  of  the  injury.3 
sKlunk  v.  Railway,  74  0.  S.  125. 

2.  Credibility  of  witnesses — What  to  be  considered — Men  and 
women  on  "joy  ride"  using  intoxicating  liquors.  In  deciding 
the  question  of  credibility,  which  is  the  sole  province  of  the  jury, 
you  will  take  into  consideration  all  the  facts  and  circumstances 
surrounding  the  case.  You  are  not  bound  to  take  the  statement 
of  a  witness  merely,  because  he  or  she  may  have  made  the  same 
from  the  witness  stand.  You  may  disbelieve  all  or  part  of  what 
a  witness  might  state,  as  you  may  decide.  It  will  be  your 
province  and  duty  to  weigh  all  of  the  statements  of  the  witnesses 
in  the  light  of  all  the  facts  and  circumstances  developed  by  the 
evidence;  to  consider  the  reasonableness  thereof  in  connection 


AUTOMOBILES — INJURY   BY.  1215 

with  all  the  facts,  the  probability  of  their  truth,  or  the  im- 
probability of  the  truth  thereof;  the  demeanor  and  conduct  of 
the  witness  or  witnesses  while  upon  the  stand;  you  will  consider 
whether  or  not  any  of  the  witnesses  have  shown  any  reticence 
in  giving  the  testimony;  whether  there  has  been  a  disposition 
to  withhold  something  material ;  and  if  so  what  effect  it  should 
have  upon  the  credibility  of  their  statements.  You  may  con- 
sider whether  any  of  the  witnesses  have  been  frank,  open  and 
apparently  sincere,  or  whether  they  have  been  otherwise,  not 
frank,  open  and  not  apparently  sincere  and  truthful.  You  have 
the  right,  and  it  is  your  duty,  to  consider  all  of  the  conduct  of 
all  the  parties  who  were  present  and  concerned  in  this  automo- 
bile incident ;  you  may  consider,  if  you  deem  proper,  the  motives, 
objects  and  purposes  which  any  of  them  had  in  the  automobile 
trip  which  they  were  making,  whether  it  would  have  a  tendency 
to  affect  the  credibility.  You  may  consider  also  all  of  the  evi- 
dence relating  to  the  question  of  whether  or  not  the  parties 
who  have  testified  and  who  may  have  been  in  the  automobile 
trip  had  been  engaged  in  the  drinking  of  intoxicating  liquors, 
and  whether  or  not  in  your  judgment  it  had  anything  to  do 
with  their  credibility  in  the  statements  given  by  any  of  them 
from  the  witness  stand.  You  may  consider  whether  or  not 
there  was  any  reason  under  all  the  circumstances  for  withhold- 
ing anything  relating  to  this  trip  or  to  the  conduct  of  any  of 
the  witnesses  who  were  involved  therein  and  who  have  given 
testimony,  or  whether  or  not  there  was  any  lack  of  motive  to 
withhold  anything  as  to  which  may  have  been  inquired  of  while 
upon  the  witness  stand. 

And  when  you  have  considered  all  of  the  statements  given  by 
the  witnesses  from  the  witness  stand  and  have  determined  upon 
what  you  will  believe  and  what  you  will  disbelieve,  if  anything, 
you  will  then  deduce  from  the  testimony  which  you  shall  finally 
decide  to  be  credible  and  worthy  of  belief  and  by  the  application 
of  tli"  rules  of  law  given  you  by  the  court  for  your  instruction  and 
guidance,  you  will  deduce,  as  I  say,  from  the  evidence  the  ulti- 
mate facts  which  are  involved  and  in  controversy  in  this  case 


1216  INSTRUCTIONS  TO  JURY. 

3.  Plaintiff  must  show  chauffeur  to  have  been  within  the  busi- 
ness of  owner.  Ownership  of  an  automobile  alone  is  not  in  any 
sense  to  be  taken  as  evidence  of  agency.  The  burden  is  upon 
the  one  complaining  of  personal  injuries  resulting  from  negli- 
gence in  the  operation  of  a  machine,  to  show  not  only  the  fact 
that  the  person  driving  the  car  at  the  time  was  the  servant  of 
the  owner,  but  the  person  complaining  is  bound  also  to  prove 
the  further  fact  that  such  driver  was  at  the  time  of  the  accident 
engaged  in  the  master's  business  either  with  the  master's  ex- 
press knowledge  and  consent,  or  with  the  master's  implied  con- 
sent, which  may  be  derived  from  the  facts  and  circumstances  of 
the  particular  case;  and  this  question  must  be  decided  by  the 
jury  from  the  evidence  in  this  case. 

The  test  of  the  master's  liability  for  the  act  of  a  servant  is 
whether  such  servant  was  acting  at  the  time  of  an  injury  com- 
plained of,  either  within  the  scope  of  the  employment,  or  within 
the  line  of  the  service  and  business  of  the  master.4  The  term 
"in  the  course  or  scope  of  employment  or  authority"  means 
while  the  servant  is  engaged  in  the  particular  service  of  the 
master,  and  employment,  or  under  particular  authority.5  That 
is,  it  refers  to  the  fact  that  the  servant  is  engaged  in  the  service 
of  the  master,  or  while  he  is  about  the  master's  business.  It 
does  not  necessarily  mean  during  the  period  covered  by  the 
employment,  but  has  reference  to  the  act  of  being  engaged  in 
the  service  and  business  of  the  master.  And  if  during  the 
period  of  time  which  may  be  covered  by  the  employment  of  a 
servant  by  a  master,  the  servant  steps  aside  from  the  line  of 
the  business  of  the  master  and  departs  from  the  line  of  service, 
although  he  is  still  within  the  employment  of  the  master,  such 
departure  from  the  line  of  service  at  a  particular  time  by  the 
servant  will  relieve  the  master  from  responsibility  for  the  acts 
of  neglect  on  the  part  of  his  servant  at  the  time  when  he  is  so 
acting  outside  of  and  beyond  the  line  of  the  business  of  the 
master,  and  without  and  beyond  the  line  of  the  service  of  his 
master. 

For  any  acts  done  by  a  servant  for  his  master  which  may  in 
any  sense  be  warranted  by  the  implied  authority  and  which  may 


A  TTO  MOBILES — INJUKY    BY.  1217 

be  reasonably  drawn  from  any  fact  or  circumstances  appearing 
in  the  evidence,  if  any  there  may  be,  which  relates  to  and  has 
to  do  with  the  particular  acts  of  a  servant  which  are  complained 
of  by  a  party  litigant  as  being  negligent,  and  from  which  it 
may  be  reasonably  inferred  that  such  acts  are  within  the  implied 
authority  given  by  the  master,  the  latter  may  be  held  responsible 
for  the  consequences  of  the  acts  of  the  servant. 

Now,  gentlemen,  applying  the  rules  of  law  touching  the 
claims  made  by  the  plaintiff,  if  you  find  that  H.  was  still  right- 
fully using  the  machine  under  a  contract  of  hiring,  and  that  it 
was  being  driven  by  the  chauffeur  and  servant  of  the  defendant 
at  the  time  of  the  injury,  and  that  such  servant  was  at  such  time 
of  the  injury  driving  the  car  at  an  unlawful  rate  of  speed  and 
such  unlawful  and  negligent  rate  of  speed  was  the  direct  and 
proximate  cause  of  the  injury  to  plaintiff,  then  in  such  case  the 
defendant  is  responsible  for  the  acts  and  negligence  of  the  chauf- 
feur, and  your  verdict  should  in  such  case  be  for  the  plaintiff, 
and  she  will  be  entitled  to  recover  reasonable  compensation  in 
damages  for  the  injury  sustained  by  her. 

4  The  charge  that  was  given  in  White  Oak  Coal  Co.  v.  Rivoux,  supra,  was 
to  the  effect  that  when  ownership,  and  the  fact  that  the  driver 
was  in  defendant's  employ,  the  burden  was  on  the  defendant  to 
show  that  the  accident  happened  outside  the  scope  of  the  employ- 
ment.     This  was  held  error. 

b  Babbitt  Motor  Vehicles,  sec.  537;  Slater  v.  Advance  Thresher  Co.,  97 
Minn.  305. 

4.  Intoxication  of  passengers  and  chauffeur — Presence  of 
liquors  in  car  at  time  of  wreck — Contributory  negligence  of 
plaintiff  in  use  of  liquors,  so  as  to  be  unable  to  use  ordinary  care 
— Circumstantial  evidence — Inferences.  Some  evidence,  how- 
ever, has  been  introduced  touching  the  conduct  of  all  the  parties 
who  were  passengers  in  the  car  as  to  the*  drinking  of  intoxicating 
liquors.  It  is  alleged  by  plaintiff  in  her  petition  that  the  chauf- 
feur of  the  defendant  was  incapacitated  by  intoxication  from 
driving  the  ear,  and  evidence  has  been  offered  as  to  intoxicating 
liquors  being  found  in  the  wreck  of  the  machine,  as  well  as  of 
declarations  of  persons  involved  in  the  transaction  as  to  intoxi- 
cation of  the  persons  connected  therewith. 


1218  INSTRUCTIONS  TO  JURY. 

This  evidence  may  be  considered  by  the  jury  not  only  in 
respect  to  the  liability  of  the  defendant,  but  also  as  affecting  the 
right  of  plaintiff  to  recover,  as  well  as  reflecting  upon  the  cred- 
ibility of  the  witnesses.  The  evidence  touching  this  matter  may 
consist  in  part  of  direct  evidence  as  well  as  of  circumstantial 
evidence.  Circumstantial  evidence  consists  of  inferences  drawn 
from  the  proven  facts.  The  jury  may  make  such  inferences 
from  the  presence  of  the  intoxicating  liquors  in  the  machine  and 
in  possession  of  the  party,  as  well  as  from  the  manner  of  driving 
of  the  machine,  and  from  the  nature  and  character  of  the 
accident  as  it  may  deem  and  consider  to  be  warranted  therefrom. 
The  jury  may  also  make  such  inferences  from  the  conduct  of 
each  and  all  of  the  parties  in  visiting  places  where  intoxicating 
liquors  are  sold  as  you  may  deem  proper  and  reasonable. 

The  court  charges  the  jury  that  persons  who  go  out  upon 
rides  such  as  was  taken  by  plaintiff  and  the  other  persons  in 
the  automobile  on  this  occasion,  are  bound,  and  this  plaintiff 
was  bound  to  be  prudent  and  careful  in  the  use  of  intoxicants 
so  that  they  will  not  become  under  the  influence  thereof,  so 
that  they  may  not  be  unable  on  account  of  the  use  of  such  in- 
toxicants to  exercise  ordinary  care  for  their  own  safety  under 
the  circumstances.  It  is  also  incumbent  upon  such  persons 
under  such  circumstances  that  they  shall  use  reasonable  care 
and  precaution  for  their  own  protection  and  safety,  and  this 
plaintiff  was  bound  so  far  as  she  reasonably  could  under  all  the 
circumstances  to  use  reasonable  care  and  precaution  for  her 
own  safety.  Such  persons  are  bound  to  observe  ordinary  care 
to  see  that  their  conduct  in  visiting  a  saloon  and  drinking  intoxi- 
cants and  in  carrying  intoxicating  liquors  in  the  machine,  shall 
not  thereby  contribute  to  the  use  of  liquor  by  and  the  intoxica- 
tion of  the  chauffeur.  And  this  duty  and  obligation  was  im- 
posed upon  the  plaintiff  in  this  case  under  all  the  circumstances 
in  the  case. 

If  the  jury  believe  and  find  from  the  evidence  and  the  cir- 
cumstances in  this  case,  that  the  conduct  of  the  plaintiff  and 
her  companions  in  respect  to  the  use  of  intoxicating  liquors 


AUTOMOBILES INJURY  BY.  1219 

can  not  be  chargeable  with  any  such  conduct,  if  any  there  was, 
of  any  other  member  of  the  party,  in  the  matter  of  contributing 
to  the  intoxication  of  the  chauffeur,  if  be  was  so  intoxicated. 

5.  Evidenci  that  chauffeur  permitted  another  to  drive  car  at 
time  of  injur!/  and  as  to  intoxication,  consisting  of  declarations 
as  part  of  res  gestae.  It  is  claimed  in  evidence  that  at  the  time 
of  the  injury  that  some  person  in  the  party,  other  than  the 
chauffeur  and  servant  of  the  plaintiff,  was  driving  the  automo- 
bile at  that  time.  The  testimony  touching  this  matter  is  con- 
flicting, consisting  in  part  of  direct  testimony  of  parties  who 
were  in  the  machine,  and  in  part  of  testimony  of  other  persons 
having  no  connection  with  the  occurrence  as  to\  declarations 
alleged  to  have  been  made  by  the  persons  who  were  in  the 
machine  at  the  time  of  the  injury,  which  were  made  soon  after 
the  wreck,  as  well  as  of  a  person  involved  in  the  transaction 
alleged  to  have  been  made  soon  after  he  had  regained  conscious- 
ness. This  evidence  as  to  the  alleged  declarations  of  the  parties 
so  concerned  and  involved  in  the  transaction  were  admitted  by 
the  court  because  of  their  being  considered  in  law  to  have  been 
part  of  the  res  gestae,  that  is,  part  of  the  transaction,  part  of  the 
act  of  driving  the  machine  over  the  embankment.  Such  testi- 
mony was  admitted  under  the  law  upon  the  theory  that  if  such 
declarations  were  made,  they  were  made  in  such  immediate 
connection  with  the  wreck,  and  were  made  under  the  influences 
of  the  same  without  time  for  reflection,  and  were  so  concomitant 
with  the  principal  act  and  so  connected  with  it  as  to  be  regarded 
as  the  result  and  consequence  of  motives  or  conduct  as  part  of 
the  principal  act  or  transaction  under  investigation.  These 
are  the  reasons  in  law  making  such  alleged  declarations  compe- 
tent  as  evidence,  but  whether  they  were  made,  and  the  weight 
and  effect  to  be  given  the  same,  if  made,  is  within  the  province 
of  the  jury  to  determine. 

With  these  instructions  you  will  consider  all  of  the  evidenci1 
on  this  point;  you  will  consider  the  question  of  credibility  of 
those  giving  testimony  on  this  matter,  their  interest  or  want  of 
interest  in  that  to  which  they  have  testified ;    you  will  consider 


1220  INSTRUCTIONS  TO  JURY. 

whether  the  person  who  was  driving  probably  did  not  know 
the  road,  or  whether  he  was  acquainted  with  it,  and  determine 
the  fact  whether  some  one  of  the  party  other  than  the  chauffeur 
was  driving  the  machine  at  the  time  of  the  injury. 

6.  Scope  of  employment  and  service  of  chauffeur  to  be  deter- 
mined by  contract  of  hiring.  The  scope  of  the  employment  and 
the  line  of  service  of  such  servant  or  chauffeur  is  to  be  deter- 
mined by  the  jury,  with  reference  to  the  nature  and  extent  of 
the  contract  of  hiring  of  the  machine  which  the  jury  may  find 
to  have  been  in  this  case. 

To  aid  you  in  determining  the  questions,  the  court  instructs 
the  jury  that  the  bailment  is  a  contract  made  and  entered  into 
between  the  parties,  one  of  whom  is  hiring  an  automobile  and 
the  other  in  letting  the  same.  If  the  facts  and  circumstances 
relating  to  the  hiring  show  that  the  automobile  in  this  case  was 
hired  by  H.  or  by  H.  and  G.  jointly,  for  a  special  trip  on  a  par- 
ticular business  and  to  a  particular  place  and  return,  and  if 
their  conduct  or  their  statements  and  any  directions  which  they 
or  either  of  them  may  have  given  to  the  driver  as  to  the  dispo- 
sition and  return  of  the  machine  so  hired,  will,  in  the  opinion 
and  judgment  of  the  jury,  warrant  the  inference  and  conclusion 
that  the  bailment,  or  the  contract  of  hiring  was  to  end  at  a 
particular  time,  then  it  must  be  concluded  by  the  jury  that  the 
contract  of  bailment  or  of  hiring  that  may  have  been  entered 
into  by  the  parties  of  the  automobile  in  question,  was  to  end  at 
such  time  as  the  jury  may  find  the  fact  to  be  from  the  evidence. 
The  particular  question  presented  in  this  case  by  the  evidence 
with  reference  to  the  contract  of  hiring  of  the  automobile  which 
the  jury  must  decide  is,  whether  the  persons  who  hired  this 
machine  from  the  defendant  hired  it  to  go  to  Urbana  and  return, 
and  whether  such  contract  of  hiring  ended  when  they  returned 
to  Columbus ;  or  whether  there  are  any  facts  or  circumstances 
in  connection  with  the  hiring  and  use  of  the  machine  by  the 
parties  in  this  case  such  as  to  warrant  the  implied  authority 
and  consent  on  the  part  of  the  defendant  that  such  machine 
should  be  used  by  H.  at  the  time  of  the  injury  complained  of. 


AUTOMOBILES INJURY  BY.  1221 

The  jury  will  carefully  look  to  and  consider  all  the  evidence 
bearing  upon  this  point.  Consider  what  was  said  and  done  at 
the  time  of  the  hiring;  consider  what  cither  G.  or  H.  said  or 
did  when  they  returned  to  Columbus  with  reference  to  what  was 
to  be  done  with  the  car;  consider  all  the  testimony  given  by 
these  two  persons  on  the  witness  stand ;  consider  the  conduct  and 
acts  of  the  chauffeur,  when  he  drove  to  the  place  of  business  of 
the  defendant ;  consider  whether  his  conduct  was  such  as  to  give 
notice  to  the  defendant  of  his  presence  there,  and  of  his  purpose 
and  intent  as  to  the  further  driving  of  the  car;  and  determine 
the  fact  whether  II.  was  using  the  car  in  pursuance  of  the 
original  hiring,  or  whether  such  further  use  of  the  same,  under 
the  conditions  and  circumstances  was  reasonably  and  properly 
chargeable  to  the  knowledge  of  the  defendant. 

If  the  jury  finds  that  H.  and  G.  by  their  conduct  and  decla- 
rations of  either  one  or  both  of  them,  and  from  the  conduct  and 
statements  of  the  chauffeur,  indicated  that  they  had  completed 
their  contract  of  hiring  of  the  automobile  when  they  returned 
to  Columbus,  if  the  jury  finds  that  such  contract  did  so  end  at 
that  time,  and  that  the  chauffeur  or  driver  was  given  to  under- 
stand or  was  directed  that  they  did  not  further  desire  to  use 
the  machine,  or  if  it  appears  from  the  evidence  that  the  chauf- 
feur was  directed  by  H.  to  go  to  the  barn  and  report,  but  that 
instead  of  doing  so,  the  jury  finds  that  the  chauffeur  himself 
voluntarily  offered  to  drive  II.  to  another  place  in  the  city 
of  Columbus  before  going  to  or  returning  to  the  barn,  the  jury 
would  in  such  case  be  warranted  in  finding  that  the  contract  of 
bailment  and  of  hiring  such  automobile  ended  at  the  time  of 
their  return  to  Columbus,  or  at  the  time  when  by  their  conduct 
and  their  declarations  they  indicated  that  such  contract  was 
ended  or  completed,  if  the  jury  finds  that  their  conduct  and 
declarations  did  so  indicate. 

If  the  jury  should  find  that  the  contract  of  hiring  did  so  end 
at  that  time  and  that  the  chauffeur  was  directed  by  II.  to  take  the 
machine  to  the  barn,  and  that,  instead  of  doing  so,  such  chauffeur 
and  driver  of  his  own  accord  voluntarily  drove  II.  out  to  another 


1222  INSTRUCTIONS  TO  JURY. 

place ;  ana  ii  H.  accepted  such  service  and  allowed  the  driver 
to  keep  such  machine  at  that  place,  and  to  further  continue 
driving  the  same  for  his  use  and  benefit,  then  in  such  case  the 
chauffeur  departed  from  the  line  of  his  service  and  was  then  no 
longer  acting  within  the  scope  of  his  employment  or  within  the 
line  of  service  of  his  master.7  And  if  in  such  case  PI.,  after 
having  been  requested  to  return  it  to  the  barn,  and  if  II.  assumed 
to  direct  what  further  use  should  be  made  of  the  machine  from 
that  time  on  up  until  the  accident,  and  the  chauffeur  consented 
thereto,  and  drove  and  managed  the  same  in  obedience  to  the 
request  and  directions  of  EL,  and  did  not  report  to  the  defend- 
ant, and  the  defendant  did  not  know  of  such  use  of  his  machine, 
and  did  not  give  its  consent  expressly  or  impliedly  to  such  use 
by  H.  or  by  its  servant,  the  chauffeur,  then  in  such  ease  the  de- 
fendant can  not  be  held  responsible  for  any  negligence  of  the 
driver  of  the  automobile  during  any  period  of  time  when  he 
was  driving  the  car  contrary  to  the  contract  of  hiring,  or  outside 
of  and  beyond  the  scope  of  the  service  and  business  of  the  de- 
fendant. If  such  be  the  finding  of  the  jury  as  to  the  contract 
of  hiring  and  the  conduct  of  the  chauffeur,  then  the  jury  is 
instructed  that  the  plaintiff  became  and  was  the  guest  of  H.,  and 
in  such  case  the  liability  for  the  negligence  of  the  chauffeur  or 
of  the  person  who  may  have  been  driving  the  car  at  the  time  of 
the  injury  rests  upon  H.,  and  not  upon  the  defendant.  In  such 
case  who  was  driving  the  car  is  immaterial  for  the  reasons  stated. 

7.  Assessment  of  damages — Fair  and  reasonable  compensation 
— To  both  defendant  and  plaintiff.  A  philosopher  once  was  asked 
the  question,  "How  shall  injury  be  repaid?"  His  answer  was, 
"Injury  shall  be  repaid  with  justice. "  If  that  justice,  according 
to  the  law  and  facts,  demands  the  award  of  damages,  then  dam- 
ages shall  be  awarded.  If  justice  demands  that  damages  shall 
not  be  awarded,  then  no  damages  may  be  awarded.  Remember 
that  every  person,  corporation  or  individual  stands  equal  before 
the  law.     Both  are  entitled  to  a  square  deal. 

If  under  these  instructions  and  upon  the  facts  as  you  shall 
find  them  to  be,  you  find  in  favor  of  the  plaintiff,  you  will  award 


AUTOMOBILES INJURY  BY.  1223 

her  such  compensation  as  you  believe  and  find  the  nature  and 
extent  of  the  injury  sustained  by  her  to  demand  and  justify. 
Her  claims  in  this  respect  have  been  stated  to  you  and  need  not 
be  repeated  here.  It  will  include  pain  and  suffering  and  the 
time  covered  by  the  period  during  which  she  may  have  suffered 
or  Mill  suffer. 

You  are  admonished  that  in  the  assessment  of  the  damages, 
you  are  to  be  guided  and  controlled  by  the  evidence.  It  is  from 
the  evidence  that  you  must  determine  the  nature  and  extent  of 
the  injuries,  and  this  includes  the  medical  expert  testimony. 
You  must  not  permit  yourselves  to  be  controlled  and  governed 
by  your  individual  notions  irrespective  of  the  evidence.  The 
idea  in  compensating  personal  injury  in  money  is  the  nearest 
approach  to  the  repair  of  the  loss  or  detriment  which  the  law 
has  been  able  to  devise.  Compensation  is  not  restitution,  for 
there  can  be  no  restitution  in  personal  injury;  money  can  never 
constitute  adequate  and  full  compensation.  So  that  in  arriving 
at  what  is  fair  and  reasonable  compensation,  the  jury  is  not  to 
consider  alone  the  plaintiff,  but  the  rights  and  situation  of  a 
defendant  are  to  be  considered.  It  is  to  be  remembered  that 
every  defendant  who  is  called  upon  to  pay  damages  has  its  duties 
and  obligations  to  perform,  so  that  in  assessing  damages,  the 
fair  and  reasonable  compensation  must  not  alone  be  fair  and 
reasonable  to  the  plaintiff,  but  it  must  be  fair  and  reasonable 
to  the  defendant  as  well. 

It  is  to  be  remembered  that  all  assessments  of  damages  in  favor 
of  a  plaintiff,  to  be  paid  for  by  a  defendant  in  personal  injury, 
may  to  a  more  or  less  extent  fall  not  alone  upon  the  particular 
defendant,  but  through  such  defendant  and  his  or  its  necessities 
it  may  ultimately  affect  others.  This  is  the  principle  lying  at 
the  basis  of  compensation  laws. 

The  jury  will,  therefore,  assess  fair  and  reasonable  compen- 
sation to  plaintiff,  if  you  find  in  her  favor. 

1  McCatham  v.  Columbus  Transfer  Co.,  Franklin  Co.  Coin  PI.,  Kinkead,  J. 
The  machine  was  hired,  to  go  to  Urbana  and  return  to  Columbus; 
on  the  return  the  machine  was  kept  out  by  one  of  the  parties  con- 
cerned in  the  hiring,  who  gathered  up  a  party  of  men  and  women, 


1224  INSTRUCTIONS  TO  JURY. 

who  visited  wine  rooms,  taking  liquors  in  the  machine.  No  report 
to  the  garage  was  made  after  return  from  Urbana,  though  the 
machine  was  driven  to  the  place  of  defendant  to  obtain  gasoline, 
but  the  evidence  did  not  directly  show  that  knowledge  of  this  fact 
was  brought  to  defendant. 

2  White  Oak  Coal  Co.,  v.  Rivoux,  88  0.  S.  31. 

sKlunk  v.  Railway,  74  0.  S.  125. 

4  The  charge  that  was  given  in  White  Oak  Coal  Co.  v.  Rivoux,  supra,  was 
to  the  effect  that  when  ownership,  and  the  fact  that  the  driver 
was  in  defendant's  employ,  the  burden  was  on  the  defendant  to 
show  that  the  accident  happened  outside  the  scope  of  the  employ- 
ment.    This  was  held  error. 

s  Babbit  Motor  Vehicles,  sec.  537 ;  Slater  v.  Advance  Thresher  Co.,  97 
Minn.  305. 

e  Intoxication  can  be  showu  as  a  contributory  cause.  Babbitt  Motor 
Vehicles,  sees.  252,  450,  915;  Thompson  on  Keg.,  2d  ed.,  sec.  452; 
McFern  v.  Gardner,  121  Mo.  App.  1:  McPhee  v.  Scully,  163  Mass. 
219,  40  L.  R.  A.  143,  and  cases  cited. 

t  Babbitt  Motor  Vehicles,  sec.  5G6.  See  Long  v.  Nute,  123  Mo.  App.  204; 
Patterson  v.  Kates,  152  Fed.  481.  See  Berry  Autos,  sec.  137. 
See  cases  cited  in  opinion  in  88  O.  S.  31. 


CHAPTER   LXXV. 
BAILMENTS. 


SEC.  SEC. 

1544.  Loss  of  goods  by  negligence  1540.     Proprietor   of  garage   bound 

of     storage     company  —  to     exercise     supervision 

Whether    occasioned    by  over  employees  to  guard 

natural  decay,  or  by  neg-  against  wrongful    taking 

hgence  in  maintenance  of  out  of  stored  auto, 

temperature.  1547.     Liability    of    garage    keeper 

1545.  Liability    of    garage    keeper  for    allowing    customer's 

for  safety  of  automobile  automobile    to    be    taken 

entrusted  to  him.  out  without  authority. 


Sec  1544.  Loss  of  goods  by  negligence  of  storage  company, 
whether  occasioned  by  natural  decay,  or  by 
negligence  in  maintenance  of  temperature. 

It  is  one  of  the  conditions  of  the  contract  of  storage  between 
the  parties  that  defendant  company  should  not  be  responsible  for 
loss  or  damage  to  property  occasioned  by  natural  decay. 

If  you  find  from  the  evidence  that  the  goods  in  question  were 
stored  in  a  dry  and  suitable  room,  and  that  the  defendant  main- 
tained the  temperature  of  the  storage  rooms  as  stipulated  for  in 
the  storage  agreement  therefor,  and  that  the  goods  were  dam- 
aged by  natural  decay,  then  defendant  is  not  liable,  although 
you  may  find  the  goods  in  question  were  returned  in  a  damaged 
state  as  the  result  of  such  natural  decay.  And  your  verdict  in 
such  case  should  be  for  defendant. 

If  you  find  from  the  evidence  that  defendant  failed  to  main- 
tain the  temperature  of  the  cold  storage  room  as  stipulated  for 
in  the  agreement,  and  allowed  the  same  to  become  warmer  or 
colder  than  that  stipulated  for,  and  you  further  find  as  the 
direct  result  of  such  failure  the  goods  of  plaintiff  were  damaged, 
or  if  you  find  from  the  evidence  that  defendant  was  negligent  in 

1225 


1226  INSTRUCTIONS  TO  JURY. 

respect  to  placing  the  goods  in  question  in  an  unsuitable  room 
as  alleged,  and  you  further  find  as  a  direct  result  thereof  that 
plaintiff's  goods  were  damaged,  then  the  plaintiff  is  entitled  to 
your  verdict. 

It  was  the  duty  of  the  defendant  to  exercise  reasonable  care 
in  placing  the  goods  in  a  suitable  room  for  such  storage.  Negli- 
gence is  the  want  of  ordinary  care,  and  may  consist  in  doing 
something  that  ought  not  to  be  done,  or  in  not  doing  something 
which  ought  to  be  done.  And  ordinary  or  reasonable  care  is  that 
degree  of  care  which  persons  of  ordinary  care  and  prudence  are 
accustomed  to  use  under  the  same  or  similar  circumstances. 

If  you  find  from  the  evidence  that  defendant  failed  to  main- 
tain the  temperature  of  the  cold  storage  room  as  stipulated  for 
in  the  agreement,  and  allowed  the  same  to  become  warmer  or 
colder  than  that  stipulated,  and  placed  the  goods  in  a  damp,  wet 
room,  but  that  neither  of  said  matters  was  the  cause  of  the 
damage  to  the  stored  goods  of  plaintiff,  if  you  find  they  were 
damaged  when  returned,  then  plaintiff  can  not  recover.  The 
plaintiff  can  not  recover  for  any  alleged  damages  which  are  not 
the  direct  consequence  of  some  act  or  omission  upon  the  part  of 
defendant  complained  of. 

The  mere  fact  that  the  temperature  may  have  fallen  below  that 
stipulated  for,  or  went  above  the  same,  nor  the  fact  that  the 
room  was  damp  and  wet,  if  you  find  such  to  be  the  facts,  would 
not  of  themselves  warrant  a  verdict  against  defendant,  unless 
you  further  find  that  such  act  or  omission  was  the  proximate 
cause  of  the  damages  complained  of,  if  you  find  there  was  such 
damage. 

It  is  the  claim  of  defendant  that  plaintiff  negligently  allowed 
the  horse  radish  to  remain  in  storage  after  discovery  by  him  of 
its  decaying  condition. 

If  you  find  from  the  evidence  that  plaintiff  discovered  any 
considerable  time  before  removing  same  from  storage,  that  the 
horse  radish  was  in  a  decaying  and  wasting  condition,  it  was  his 
duty  under  such  circumstances  to  use  diligent  efforts  on  his  part 
to  avoid  such  further  damage  from  any  alleged  breach  of  con- 


BAILMENTS. 


1227 


tract  by  the  defendant  company;  and  his  failure  to  use  reason- 
able care  on  his  part  to  avoid  further  damage  as  would  probably 
result  from  any  alleged  act  of  the  defendant,  if  you  find  such  to 
be  the  fact,  it  will  prevent  a  recovery  by  him  for  any  damages 
which  may  have  occurred  after  such  discovery  and  knowledge 
which  might  have  been  prevented  by  such  reasonable  effort  on 
his  part.1 

i  Becker    v.    The   Crystal    Ice   Mfg.    &    Cold    Storage   Co.,    Common    Pleas 
Court,  Franklin  Co.,  O.,  Rathmel,  J. 

Sec.  1545.     Liability  of  garage  keeper  for  safety  of  automobile 
intrusted  to  him. 

The  jury  is  instructed  that  a  person  who  operates  a  garage 
and  who  holds  himself  out  to  the  public  as  being  willing  to 
receive,  keep  and  store  automobiles  for  hire  is  to  be  considered 
as  a  bailee  for  hire ;  that  as  such  bailee  the  law  imposes  a  duty 
upon  him  to  exercise  reasonable  or  ordinary  care  in  the  matter 
of  the  care  and  custody  of  automobiles  entrusted  to  his  care  by 
a  patron.  In  no  sense  is  he  to  be  regarded  as  an  insurer  of  the 
safety  of  or  against  the  loss  of  such  machine.  The  measure  of 
care  called  for  under  the  circumstances  is  such  care  as  men,  in 
general,  bestow  upon  their  own  property  similarly  situated,  the 
contract  involving  an  understanding  that  the  bailee  may  use  the 
usual  means  for  the  protection  of  the  property.  That  is,  he  is 
bound  to  use  ordinary  care  in  the  selection  of  his  agents,  as  well 
as  in  retaining  them  in  his  employ. 

It  follows  that  if  an  automobile  so  placed  in  the  custody  of  a 
proprietor  of  a  garage  keeper  for  storage  and  repairs,  which  is 
injured  or  destroyed  by  the  negligence  of  the  garage  keeper  or 
his  servants  while  acting  within  the  scope  of  their  authority, 
such  garage  proprietor  is  liable  to  the  owner  of  the  automobile 
therefor.1 

i  Fireman's  Fund  Tns.  Co.  v.  Schreiber,  150  Wis.  42,  135  N.  W.  507, 
American  Ann.  Cases,  1913,  E;  Roberts  v.  Kijiloy,  8!)  Kan.  885, 
132  Pac.  1180;  Wilson  v.  Wyckoff,  133  App.  Div.  92,  affd.  200 
N.  Y.  561. 


1228  INSTRUCTIONS  TO  JURY. 

Sec.  1546.  Proprietor  of  garage  bound  to  exercise  supervision 
over  employees  to  guard  against  wrongful 
taking  out  of  stored  auto. 

The  jury  is  instructed  that  a  proprietor  of  a  garage  owes  a 
duty  towards  a  person  who  delivers  an  automobile  to  him  for 
storage  and  repair  to  exercise  reasonable  or  ordinary  supervision 
over  his  servants  or  employees  ;  and  if  he  has  notice  or  knowledge 
that  an  employee  is  possessed  of  proclivities  rendering  it  likely 
that  he  would  injure  the  property  of  others  so  delivered,  it  is 
his  duty  to  exercise  ordinary  care  to  protect  the  same  from 
danger  of  injury  to  which  it  may  thus  be  subject. 

If  such  proprietor  has  knowledge  of  the  proclivity  or  habit  of 
an  employee  to  take  machines  out  without  authority  or  justifica- 
tion, he  should  not  be  allowed  to  thus  subject  the  property  of 
his  innocent  customers  to  the  danger  of  loss  by  failure  to  observe 
ordinary  care  and  usual  precautions  to  prevent  damage  by  his 
dissolute  or  reckless  employees. 

It  follows,  therefore,  if  the  garage  proprietor  fails  to  use  ordi- 
nary and  reasonable  care  by  a  method  or  system  to  prevent  em- 
ployees from  taking  the  machines  of  a  customer  without  authority, 
and  an  employee  does  so  take  the  automobile  of  a  customer  of  the 
garage  without  authority  who  injures  the  same  while  it  is  so 
in  his  wrongful  possession,  the  proprietor  will  be  responsible 
therefor.1 

i  Evans  v.  Dyke  Auto  Supply  Co.,  121  Mo.  266,  101  S.  W.  1132;  Hughes 
Sons  Co.  v.  Bergin  Auto  Co.,  75  N.  J.  L.  355,  67  Atl.  1018.  Am. 
Ann.  Cases,  1913,  E,  note. 

Sec.  1547.  Liability  of  garage  keeper  for  allowing  customer's 
automobile  to  be  taken  out  without  authority. 

The  jury  is  instructed  that  where  it  is  made  to  appear  that  an 
automobile  garage  keeper  allows  an  employee  to  take  out  and 
drive  the  car  of  his  customer  who  has  stored  it  with  such  keeper, 
without  the  consent  or  authority  of  such  customer,  it  is  not 
essential  to  fix  the  liability  of  such  keeper  that  it  be  shown  that 
the  auto  was  injured  by  the  negligence  of  such  employe.     On 


BAILMENTS.  1229 

the  contrary,  proof  of  an  injury  to  the  car  while  so  in  the  wrong- 
ful and  unauthorized  possession  of  such  employee  constitutes  a 
prima  facie  case  of  liability  on  tlie  part  of  such  garage  keeper, 
such  liability  being  fixed  by  his  own  neglect  in  allowing  the 
machine  to  go  out  of  his  possession.1 

i  Wilson  v.  Wyckoff,  133  App.  Div.  92,   117  X.  Y.  S.  783,  200  N.  Y.  561, 
93  N.  E.  1135. 


CHAPTER   LXXVI. 
BANKS— BANK  DEPOSITS— BANK  CHECKS. 


SEC. 

SEC. 

1548. 

Cashier  authorized  to  receive 
deposits  —  Authority    of 
president    to    do    so    by 

1551. 

custom  or  usage. 

1552. 

1549. 

Measure  of   care   required  of 
directors  of  bank   in  re- 
spect to  acta  of  officers. 

1553. 

1550. 

Bank    estopped   to   deny   au- 
thority of  officers. 

Relation  of  bank  directors  to 
public — Liability  for  de- 
faulting officers. 

Liability  of  drawer  of  check. 

The  nature  of  a  check — Rules 
regulating  rights  and  lia- 
bilities of  parties  thereto. 


Sec.  1548.     Cashier  authorized  to  receive  deposits — Authority 
of  president  to  do  so  by  custom  or  usage. 

The  president  of  a  national  bank  does  not,  under  and  by  virtue 
of  the  act  of  Congress  establishing  and  governing  national  banks, 
nor  under  the  general  rules  of  law  applicable  to  banks  and  bank- 
ing, by  virtue  of  his  said  office  of  president,  have  power  and 
authority  to  execute  and  issue  certificates  of  deposit  of  said 
bank,  and  the  certificate  so  issued  by  him  does  not,  by  reason  of 
the  fact  that  it  bears  his  name  as  president,  bind  such  bank. 

The  only  officer  of  a  bank  who,  by  virtue  of  his  office,  has  au- 
thority to  receive  deposits  offered  to  a  bank,  and  to  bind  the 
bank  by  his  certificate  therefor,  is  the  duly  elected  and  acting 
cashier.  But  the  president  may  be  authorized  expressly,  or  by 
custom  or  usage  in  the  conduct  of  the  business  of  said  bank,  to 
transact  any  or  all  the  duties  devolving  upon  the  cashier  by 
virtue  of  his,  the  cashier's,  office.  It  is  competent  for  the  board 
of  directors  to  clothe  the  president  with  the  authority  and  power 
to  receive  deposits  and  bind  the  bank  by  his  official  signature  as 
president  to  certificates  of  deposit  as  effectually  as  the  cashier 
may  do.  It  is  not  required  that  this  authority  to  the  president 
be  conferred  by  any  express  or  formal  action  by  the  directors, 
1230 


BANKS BANK    DEPOSITS BANK    CHECKS.  1231 

but  it  may  be  implied  from  circumstances,  or  a  long  uniform 
course  of  delay  on  the  part  of  the  bank.  If  the  president  in  his 
capacity  as  president  has  been  in  the  habit  of  receiving  deposits 
and  issuing  certificates  therefor,  which  habit  has  existed  for  a 
considerable  length  of  time,  and  the  directors,  or  a  majority  of 
them,  for  a  long  time  knew  of  such  habit,  making  no  objections 
thereto,  then  an  authority  from  them  to  the  president  to  do  such 
acts  may  be  presumed,  and  if  these  acts  were  frequent,  long 
continued,  open  and  notorious,  the  knowledge  of  the  directors 
may  reasonably  be  presumed.1 

i  Newby,  J.,  in  Carlisle  Barrere  v.  The  Citizens  Natl.  Bank  of  Hillsl>oro  of 
Highland  Co.  Com.  Pleas;.  See  similar  charge,  Brickwood  Sack. 
Insts.,  sec.  571 ;    Rankin  v.  Bank,  188  U.  S.  557. 

Sec.  1549.     Measure  of  care  required  of  directors  of  bank,  in 
respect  to  acts  of  its  officers. 

It  is  the  duty  of  the  board  of  directors  of  a  bank  to  give  such 
attention  to  its  business  as  will  enable  them  to  become  acquainted 
with  and  know  the  manner  in  which  the  business  of  the  bank  is 
being  conducted,  and  to  ascertain  whether  any  officers  constituted 
or  appointed  by  them  are  disregarding  or  exceeding  the  author- 
ity intrusted  to  them  by  the  board;  and  if  the  directors,  in  a 
careful  and  prudent  discharge  of  their  duties  in  this  behalf,  and 
by  the  employment  of  an  ordinary  amount  of  care  therein,  could 
or  might  have  discovered  that  their  president  was  usurping  the 
functions  of  the  cashier  to  the  extent  of  receiving  deposits  and 
issuing  certificates  of  the  bank  therefor,  they  will  be  charged  in 
law  with  such  knowledge  as  they  could  have  thus  obtained,  and 
their  silence  and  failure  to  object  under  such  circumstances, 
would  in  law  amount  to  an  authority  from  the  directors  to  the 
president  to  do  the  acts  he  assumed  to  perform  in  that  regard, 
and  to  bind  the  bank  therefor.1 

i  Newby,  J.,  in  Barrere  v.  Citizens  Natl.  Bank,  Highland  Co.  C.  P.;  Morse 

on  Banks,  sees.   125,   128. 
Directors  of  national  bank,  under  rule  of  ordinary  care  required  of  them, 

liable  personally  for  the  mismanagement  or  misfeasance  of   former 

directors  under  what  circumstances.      Glass  v.  Courtright,  14  N.  P. 

(N.S.)   273. 


1232  INSTRUCTIONS  TO  JURY. 

Sec.  1550.     Bank  estopped  to  deny  authority  of  officers. 

And  if  the  directors  of  a  bank,  or  a  majority  of  them,  without 
objection  or  protest  on  their  part,  suffer  and  permit  the  presi- 
dent without  authority  expressly  conferred,  to  exercise  the  duties 
of  the  cashier  in  the  receipt  of  deposits  and  issuances  of  certifi- 
cates of  the  bank  to  an  extent  that  would  justify  a  person  with 
ordinary  prudence  and  caution  dealing  with  the  bank,  in  the 
reasonable  belief  that  the  president  had  the  proper  authority 
from  the  directors  to  receive  money  and  to  perform  the  functions 
of  the  cashier,  and  if  parties  dealing  with  the  president  in  good 
faith  rely  upon  the  appearances  thus  created,  the  bank  will  be 
estopped  to  deny  that  their  president  possessed  the  authority 
apparently  possessed  by  him.  But  he  must  have  relied  in  good 
faith  upon  such  appearances,  and  if  he  knew  that  the  president 
was  exceding  his  authority,  or  if  he  was  in  possession  of  knowl- 
edge of  facts  or  circumstances  which  would  arouse  the  suspicion 
of  a  man  of  ordinary  intelligence  and  caution  as  to  whether  the 
president  was  dealing  for  the  bank  within  the  scope  of  his 
authority,  under  such  circumstances,  he  would  not  be  justified 
in  relying  upon  such  appearances,  although  but  for  such  knowl- 
edge on  his  part  he  would  be  protected.1 
i  Newby,  J.,  in  Barrere  v.  Citizens'  Natl.  Bank,  Highland  Co.  Com.  PI. 

Sec.  1551.    Relation  of  bank  directors  to  public — Liability  for 
defaulting  officers. 

The  directors  of  a  national  bank  are  guarantors  to  the  public 
of  the  fidelity  and  integrity  of  the  officers  and  agents  selected  by 
them  for  the  management  of  the  business  of  the  bank,  while  those 
officers  and  agents  may  be  acting  within  a  reasonable  scope  of 
their  duties  as  such  officers.  Where,  therefore,  there  has  been  a 
misappropriation  or  embezzlement  by  an  officer  of  a  bank  of  a 
deposit  received  by  such  officer  from  a  depositor  for  the  bank 
by  its  authority,  the  loss  will  fall  upon  the  bank  and  not  upon 
the  depositor.  If  an  officer  of  the  bank,  therefore,  be  authorized 
by  the  board  of  directors,  either  expressly  or  impliedly  by  their 


BANKS — BANK    DEPOSITS — BANK    CHECKS.  1233 

acts,  to  receive  deposits  for  the  bank  and  issue  certificates  there- 
for ;  and  if  the  plaintiff  at  the  bank  and  in  the  usual  course  of 
business  delivered  to  such  officer  to  be  deposited  in  the  bank, 
money  which  the  officer  received  and  issued  certificates  therefor 
in  the  money  of  the  bank,  then  the  plaintiff  is  entitled  to  recover 
from  the  bank  the  amount  so  deposited.1 
i  Newby,  J.,  in  Barrere  v.  Citizens'  Xatl.  Bank,  Highland  Co.  Com.  PI. 

Sec.  1552.     Liability  of  drawer  of  check. 

To  render  the  drawer  of  a  check  liable  to  the  holder,  it  will  be 
sufficient  if  a  demand  upon  the  bank  has  been  made,  at  the  bank, 
during  the  usual  hours  of  business,  and  notice  of  non-payment 
given  to  the  drawer  at  any  time  before  suit  is  brought  against 
him  thereon,  unless  it  appear  that  the  bank  has  failed  during  the 
delay  of  presentation,  or  the  drawer  has  in  some  other  manner 
sustained  injury  by  the  delay  of  the  demand,  or  delay  of  notice 
of  non-payment.1 
i  Frey  v.  Gragg,  Supreme  Court,  unreported. 

Sec.  1553.     The  nature  of  a  check — Rules  regulating  rights 
and  liabilities  of  parties  thereto 

You  are  instructed  that  a  check  is  a  draft  or  order,  drawn  for 
the  immediate  payment  of  money,  and  that  they  are  of  such 
common  use  as  to  answer  as  payment  for  considerable  amounts 
of  money.  Certain  usages  have  grown  up  peculiar  to  this  class 
of  instruments,  which  have  become  engrafted  on  the  commercial 
law  of  the  land.  A  check  is  drawn  upon  an  existing  fund,  and 
is  an  absolute  transfer  or  appropriation  to  the  holder,  of  so  much 
money  in  the  hands  of  the  drawee.  The  drawer  of  a  check  is 
the  principal  debtor,  and  one  who  places  his  name  on  the  back 
is  an  endorser.  As  between  the  holder  or  payee  of  a  check  and 
an  endorser,  demand  of  payment  within  the  time  due  is  essential 
to  the  liability  of  such  endorser.  Where  the  parties  reside  in 
the  same  place,  the  holder  should  present  the  check  on  the  day 
it  is  received,  or  within  business   hours  of  the  following  day. 


1234  INSTRUCTIONS  TO  JURY. 

Mere  delay  in  presenting  a  check  in  due  time  for  payment  does 
not  discharge  the  drawer,  unless  he  has  been  injured  thereby, 
and  then  only  to  the  extent  of  his  loss.  A  check  does  not  have 
to  be  accepted,  and  when  presented  it  is  for  payment,  and  is 
payable  when  presentation  and  demand  is  made.1 
i  Morrison  v.  Bailey,  5  O.  S.  13;   Kinkead's  Code  Pldg.,  sec.  289. 


CHAPTER   LXXVIL 
BASTARDY. 

SEC.  SEC. 

1554.     Bastardy — Instructions.  1555.     Reputation     of     prosecutrix 

1.  Statement  of  issues.  for  truth  and  veracity. 

2.  Burden  of  proof — Degree       1556.     Reputation  of  defendant  for 

of  evidence.  virtue  and  chastity. 

3.  Credibility  of  witnesses. 

4.  Verdict  by  jury. 

Sec.  1554.     Bastardy — Instructions. 

1.  Statement  of  issues. 

2.  Burden  of  proof — Degree  of  evidence. 

3.  Credibility  of  witnesses. 

4.  Verdict  by  jury. 

1.  Statement  of  issues.  The  defendant  in  this  ease  is  charged 
by  the  prosecutrix,  E.  H.,  by  her  complaint  in  bastardy,  that 
she,  being  unmarried,  was  delivered  of  a  bastard  child  on  the 

day  of ,  and  that  the  defendant  is  the  father  of 

such  child. 

To  this  charge  the  defendant  has  pleaded  not  guilty,  and  thus 
the  issue  is  made  up  for  you  to  determine  upon  the  evidence, 
under  the  charge  of  the  court,  the  guilt  or  innocence  of  the  de- 
fendant of  the  charge  made  against  him. 

2.  Burden  of  proof — Degree  of  evidence.  The  burden  of  proof 
is  upon  the  relator,  or  the  prosecutrix,  to  make  out  her  complaint 
and  charge  by  the  proper  degree  of  evidence,  which  the  court 
will  explain  to  you. 

While  this  proceeding  is  in  a  sense  quasi  criminal  in  its  nature, 
the  statutory  remedy  provided  by  law  in  bastardy  is  not  neces- 
sarily in  the  interest  or  for  the  benefit  of  the  prosecutrix,  but 
the  object  and  purpose  is  to  protect  the  state  and  the  county 
against  the  possible  necessity  of  the  care  of  any  child  that  may 
be  illegitimate.     The  jury  is  governed  by  the  same  degree  of 

1235 


1236  INSTRUCTIONS  TO  JURY. 

evidence  as  in  civil  cases.  The  burden  of  proof  is  upon  the 
prosecutrix  to  establish  her  charge  against  the  defendant  by  a 
preponderance  of  the  evidence. 

You  should  not  guess  or  act  upon  conjecture,  but  act  only 
upon  the  sworn  testimony  of  witnesses.  Neither  should  you  act 
in  this  matter  upon  any  views  you  may  have  concerning  this 
kind  of  a  case  which  are  not  founded  upon  or  supported  by  the 
evidence,  nor  should  you  be  moved  by  sympathy. 

In  the  trial  of  an  issue  of  fact  the  jury  are  not  expected  to 
arrive  at  a  degree  of  absolute  certainty,  but  may  under  the  law 
act  upon  probabilities. 

A  preponderance  of  the  evidence  means  the  greater  weight 
thereof.  If  it  is  evenly  balanced  between  the  parties,  or  if  it 
does  not  preponderate  in  favor  of  the  prosecutrix  on  any  of 
the  material  elements,  it  will  be  your  duty  to  find  the  defendant 
not  guilty;  but  if  the  evidence  is  greater,  or  preponderates  in 
favor  of  the  prosecutrix,  then  it  will  be  your  duty  to  find  the 
defendant  guilty. 

3.  Credibility  of  witnesses.  The  jury  are  the  sole  judges  of 
the  credibility  of  the  witnesses;  it  seems  needless  for  the  court 
to  point  out  the  various  tests  that  may  be  resorted  to  by  the 
jury.  But  in  cases  where  the  testimony  is  conflicting,  and  where 
it  may  be  evenly  balanced  upon  any  material  part  so  far  as  the 
first  knowledge  of  any  affair  like  this  is  concerned,  the  jury  may 
resort  to  any  corroborative  circumstances  or  facts  as  they  have 
appeared  to  you,  or  as  they  may  appear  in  the  evidence,  in  de- 
termining what  weight  or  what  credibility  you  will  place  upon  the 
testimony  of  the  parties  in  this  case.  You  may  consider  the  tes- 
timony of  disinterested  persons  as  to  any  material  matter  that 
may  have  been  testified  to  by  any  of  the  interested  parties- 
interested  in  the  sense  of  being  parties  to  the  action.  You  may 
consider  the  question  of  the  interest  of  the  immediate  parties  in 
weighing  their  testimony,  in  connection  with  all  of  the  other 
facts  and  circumstances  shown  by  the  evidence. 

4.  Verdict  by  jury.  It  must  be  shown  by  the  relator  that  she 
was  an  unmarried  woman;  that  she  was  delivered  of  a  bastard 


BASTARDY.  1237 

child  on  ;  and  that  the  defendant  was  the  father  of  the 

child. 

If  you  find  by  a  preponderance  of  the  evidence  that  the  pros- 
ecutrix was  unmarried,  that  she  was  delivered  of  a  bastard  child, 
and  that  defendant  was  the  father  of  the  child,  then  your  ver- 
dict should  be  for  the  relator,  the  prosecutrix.  But  if,  on  the 
other  hand,  you  find  that  defendant  was  not  the  father  of  the 
child,  then  it  would  be  your  duty  to  find  the  defendant  not 
guilty.  Your  verdict  should  be  one  either  of  guilty  or  not 
guilty.  The  jury  are  not  concerned  with  the  judgment  to  be 
entered  upon  the  verdict.  You  simply  are  to  say  whether  de- 
fendant is  guilty  or  not  guilty.  If  your  verdict  should  be  one 
of  guilty,  the  court  then  determines  what  judgment  should  be 
pronounced  on  that  verdict.  If  your  verdict  should  be  one  of 
not  guilty,  the  court  then  enters  up  a  dismissal  of  the  case.1 
i  State  v.  0.,  Franklin  Co.  Coin.  PI.,  Kinkead,  J. 

Sec.  1555.  Reputation  of  prosecutrix  for  truth  and  veracity. 
Evidence  has  been  offered  for  the  purpose  of  impeaching  the 
reputation  of  the  prosecutrix  here  for  truth  and  veracity.  The 
reputation  of  a  person  for  truth  and  veracity  is  determined  by 
what  people  say  of  such  person,  or  what  they  do  not  say.  If 
you  should  be  of  the  opinion  after  a  consideration  of  all  the 
evidence  that  the  prosecutrix  has  been,  in  your  judgment,  im- 
peached for  truth  and  veracity,  you  are  at  liberty  then  to 
believe  or  disbelieve  her  testimony.  Even  though  you  may  be 
of  the  opinion  that  she  has  been  successfully  impeached,  you 
are  not  bound  because  of  that  fact  to  discredit  her  testimony. 
You  may  or  you  may  not,  as  in  your  best  judgment  you  deem 
proper,  believe  or  disbelieve  her  testimony,  without  regard  to 
tin-  testimony  offered  as  to  her  reputation  for  truth  and  veracity. 

Sec.  1556.     Reputation  of  defendant  for  virtue  and  chastity. 

Evidence  has  been  offered  concerning  the  reputation  of  the 
defendant  for  virtue  and  chastity.  The  jury  is  instructed  that 
such  evidence  is  competent  in  favor  of  ;i  party  charged  with 
bastardy,  as  tending  to  show  that  he   would  or  would  not  be 


1238  INSTRUCTIONS  TO  JURY. 

likely  to  commit  the  act  charged  against  him.  If  you  find  in  this 
case  from  the  evidence  that  prior  to  the  alleged  commission  of 
the  act  charged  against  the  defendant  that  he  bore  a  good 
reputation  for  virtue  and  chastity  among  his  neighbors  and  in 
the  neighborhood  where  he  lived,  then  this  is  a  fact  proper  to 
be  considered  by  you  along  with  all  the  other  evidence  in  the 
case,  in  determining  the  question  of  the  defendant's  guilt  or 
innocence  of  the  charge  made  against  him.  However,  if  from 
all  the  evidence  in  the  case,  including  the  evidence  of  the  de- 
fendant's good  reputation  for  chastity  and  virtue,  you  deter- 
mine by  a  preponderance  thereof  that  defendant  is  guilty  as 
charged  in  the  indictment,  it  will  be  your  duty  to  so  find  by 
your  verdict,  notwithstanding  the  fact  that  theretofore  the  ac- 
cused had  borne  a  good  reputation  for  virtue  and  chastity. 


CHAPTER  LXVIII. 
BIGAMY. 


1557.  Bigamy  refined — The  statute.  1559.     Common    law    marriage    jiot 

1558.  Remarriage    of    wife     before  basis  for  prosecution  for 

seven    years    absence    of  bigamy. 

husband,  without  divorce.  1560.     Domicile  of  divorced  parties. 

Sec.  1557.     Bigamy — Defined — The  statute. 

The  statute  of  Ohio  provides :  Whoever,  having  a  husband  or 
wife,  marries  another,  is  guilty  of  bigamy.  But  this  does  not 
extend  to  any  person  whose  husband  or  wife  has  been  continu- 
ally absent  for  five  successive  years  next  before  such  marriage, 
without  being  known  to  such  person  to  be  living  within  that  time. 

1.  Gist  of  offense.  The  gist  of  the  offense  consists  in  going 
through  the  ceremony  of  a  second  marriage,  which  involves  an 
outrage  on  public  decency  and  morals,  and  creates  a  scandal  by 
the  prostitution  of  a  solemn  ceremony.  The  second  marriage, 
if  contracted  in  such  form  and  manner  that  it  would  be  binding 
upon  the  parties  if  they  were  legally  competent,  is  sufficient  to 
render  one  guilty  of  the  crime  of  bigamy.1 

i  Code,    sec.    13022.       Whether    or  not    the    husband    or    wife   has    so    been 

continually  absent  without  being  known   to  the  person  to  be  living 

is  matter  of  defense  to  be  proved  by  the  defendant.       Stanglein  v. 
State,  17  0.  S.  453. 

Sec.  1558.     Remarriage  of  wife  before  seven  years   absence  of 
husband,  without  divorce. 

Where  a  husband  has  disappeared,  and  his  wife  marries  again 
before  the  expiration  of  seven  years  without  having  obtained  a 
divorce,  she  would  be  guilty  if  it  should  appear  that  her  husband 
was  alive  at  the  time  of  her  marriage.1 

«  Supreme  Com.,  etc.,  v.  Kverding,  20  C.  C.  689. 

1239 


1240  INSTRUCTIONS  TO  JURY. 

Sec.  1559.     Common  law  marriage  not  basis  for  prosecution 
for  bigamy. 

The  fact  that  a  man  and  woman  cohabit  together  and  make 
acknowledgment  of  the  relation  of  marriage  existing  between 
them,  but  who  have  not  been  married  according  to  the  statute, 
does  not  constitute  such  marriage  as  to  render  a  marriage  by 
one  of  such  parties  to  another  after  having  broken  off  the  former 
illicit  relation.1 
i  Bates  v.  State,  0  C.  C.   (X.S.)  273. 

Sec.  1560.     Domicile  of  divorced  parties. 

' '  If  neither  the  husband  nor  wife  was  domiciled  in  the  foreign 
state  when  the  action  for  divorce  was  instituted  or  prosecuted, 
but  both  were  then  domiciled  in  Ohio,  the  decree  of  the  court  in 
the  foreign  state  was  void  or  inoperative  beyond  the  limits  of 
that  state."  1 
i  From  Van  Fassen  v.  State,  37  0.  S.  317. 


CHAPTER   LXXIX. 


BILLS  AND  NOTES. 


SEC. 

1561. 

1562. 
1563. 


1564. 


1565. 


1566. 


1567. 


SEC. 

Burden    of    proof    when    con-        1568. 
sideration  attacked. 

Genuineness  of  signature. 

Purchase      before      maturity        156!). 
without  notice  of  illegal 
consideration. 

Consideration  —  Delivery  — 

Denial  of  execution — Al-       1570. 
teration  —  Expert    testi- 
mony as  to  signature.  1571. 

Transfer   of  .note   after   ma- 
turity. 1572. 

Endorsement       in       bank  — 

Transfer  before  maturity.       1573. 

Liability  of  surety  on  note —        1574. 
How   revived  —  Effect  of 
subsequent  promise.  1575. 


Execution  of  note — Consider- 
ation— Payment  of  inter- 
est in  advance. 

Alteration  of  note — What 
constitutes  —  Adding 
words  "with  interest  at 
—  per  cent." 

Alteration  by  adding  name 
of  third  person. 

Alteration  by  inserting  words 
"to  be  paid  annually." 

Demand  and  notice  essential 
to  hold  endorser. 

Endorsement  of  note — Notice. 

When  maker  of  note  entitled 
to  demand. 

Forgery  as  a  defense — Estop- 
pel to  set  up. 


Sec.  1561.     Burden  of  proof  when  consideration  attacked. 

The  jury  is-  instructed  that  where  in  an  action  upon  a  promis- 
sory note  the  defense  is  that  the  note  was  given  or  obtained 
without  a  valuable  consideration,  the  plaintiff  has  the  affirmative 
of  the  issue,  and  the  burden  of  proof  rests  upon  him  to  show  a 
consideration  for  the  note,  by  a  preponderance  of  the  whole  of 
the  evidence  adduced  on  the  trial.1 

iGinn  v.  Dolan,  81  O.  S.  121.  This  is  the  rule  adopted  in  this  case,  but 
see  discussion  at  ante,  sec.  520,  where  burden  of  proof  and  weight 
of  evidence   is   distinguished. 


Sec.  1562.     Genuineness  of  signature. 

There  have  been  offered  in  evidence  fifty  signatures  of  J.  N., 
which  signatures  are  admitted  by  both  parties  to  be  the  genuine 
signatures  of  J.  N.    For  the  purpose  of  comparing  these  signa- 

1241 


1242  INSTRUCTIONS  TO  JURY. 

tures,  they  have  been  marked  Exhibits  1  to  50,  for  the  purpose 
of  allowing  you  to  compare  the  signatures  with  the  note  in  suit 
with  the  admitted  genuine  signatures  of  J.  N.,  to  aid  you  in 
connection  with  the  other  testimony  in  determining  whether  the 
signature  of  J.  N.  to  the  note  in  suit  is  the  genuine  signature 
of  J.  N.  The  note  in  suit  and  the  admitted  genuine  signatures 
of  J.  N.  will  be  before  you  in  the  jury  room  for  the  purpose  of 
allowing  you  to  compare  the  name  of  J.  N.  on  the  note  in  suit  with 
the  admitted  signatures.  Witnesses  have  been  called  by  both 
parties  to  express  their  opinions  as  to  whether  the  name  of 
J.  N.,  attached  to  the  note  in  suit,  is  genuine  or  not.  These 
several  witnesses  have  expressed  their  opinion  before  you  upon 
that  question.  You  are  instructed  that  the  opinion  of  such 
witnesses  are  competent,  and  may  be  considered.  The  weight 
to  be  given  such  testimony  is  entirely  for  you  to  determine. 
Their  testimony  may  be  given  more  or  less  weight  by  you  in 
proportion  as  you  believe  the  reasons  which  the  witnesses  give 
for  their  opinions  to  be  strong  or  weak — as  their  reasons  appear 
satisfactory  or  unsatisfactory  to  you.  You  are  the  sole  judges 
of  the  weight  to  be  given  to  the  testimony  of  such  witnesses, 
and  of  their  credibility.1 
i  Nye,  J.,  in  Ingersol  v.  Gafkey,  Summit  Co.  Com.  PL 

Sec.  1563.     Purchase  before  maturity  without  notice  of  illegal 
consideration. 

If  the  purchaser  pays  cash  for  a  note,  he  acquires  it  in  the 
usual  course  of  trade  for  valuable  consideration.  Before 
maturity  is  before  a  note,  by  its  terms,  is  due  and  payable. 
Therefore,  if  you  find  that  the  plaintiff  paid  a  cash  sum  for 
the  note,  before  maturity,  to  a  person  authorized  to  sell  it,  and 
obtained  the  note,  the  note  being  payable  to  bearer,  might  pass 
by  delivery ;  but  the  transfer  is  not  defeated  or  affected  by  the 
endorsement  of  the  payee,  and  the  plaintiff  would  then  have 
acquired  it  in  the  usual  course  of  trade  for  a  valuable  considera- 
tion, and  would  be  entitled  to  recover  thereon,  unless  it  appears 
from  the  evidence  that  he  had,  at  the  time,  notice  of  the  alleged 


BILLS   AND    NOTES.  1243 

considerations,  already  stated  and  claimed  to  be  in  the  note, 
or  that  he  had  information  which  ought  to  have  excited  the 
suspicion  of  a  reasonable  man  thereto,  and  having  the  op- 
portunity, failed  and  neglected,  or  refused  to  inquire  thereto, 
because  he  was  afraid  he  would  thereby  learn  what  he  did  not 
want  to  know.  It  is  not  sufficient,  if  it  only  appears  that  he 
took  the  note  under  circumstances  that  ought  to  have  excited 
suspicion  in  the  mind  of  a  prudent  and  reasonable  man;  but  it 
must  appear  that  he  took  the  note  under  circumstances  as  show 
he  acted  in  bad  faith  or  with  a  want  of  honesty,  and  in  deter- 
mining whether  he.  so  acted,  you  will  look  to  all  the  circumstances 
and  the  evidence  of  the  fact,  if  proved,  as  claimed,  that  he  paid 
less  than  its  fair  and  reasonable  value  for  the  note. 

If  under  all  the  circumstances,  you  find  the  plaintiff  acquired 
and  holds  the  note  by  purchase  in  good  faith,  in  the  usual  course 
of  trade  for  a  valuable  consideration  before  due,  without  notice 

of  such  infirmities,  your  verdict  will  be  in  his  favor  for , 

with  six  per  cent,  interest  to  this  date.  Add  together  the  sum 
so  found,  that  is,  the  interest  and  principal,  and  the  whole 
amount  will  be  his  damages. 

If  you  find  that  the  note  was  given  for  seed  wheat  at  fifteen 
dollars  per  bushel  and  that  such  seed  wheat  proved  worthless 
as  such,  then  your  verdict  would  be  in  favor  of  defendant,  pro- 
vided you  further  find  that  the  plaintiff  had  notice  of  the  worth- 
less character  of  the  wheat  and  of  such  consideration,  or  had 
such  notice  as  to  put  him  on  inquiry  to  you. 
i  Nye,  J.,  in  Ingersol  v.  Gafkey,  Summit  Co.  Com.  PI. 

Sec.  1564.     Consideration — Delivery — Denial     of    execution — 
Alteration — Expert  testimony  as  to  signature. 

A  promissory  note  implies  a  consideration.  It  is  not  valid 
unless  delivered  by  the  defendant  to  the  plaintiff,  though,  if 
you  find  the  note  in  the  hands  of  the  plaintiff,  duly  executed 
by  the  defendant,  you  may  then  presume  that  it  was  delivered. 

Upon  the  question  of  the  execution  of  the  note  the  burden  of 
proof  is  on  the  plaintiff,  and  he  must  establish  by  a  preponder- 


1244  INSTRUCTIONS  TO  JURY. 

ance  of  evidence  that  the  defendant  did  sign  the  note.  If  he 
fails  to  thus  prove  the  fact,  your  verdict  should  be  for  the 
defendant.  Upon  this  question  you  can  take  into  consideration 
the  testimony  of  the  experts,  persons  who  by  their  experience 
in  the  comparison  and  observation  of  handwriting,  are  permitted 
to  give  their  opinion  whether  the  signature  to  the  note  in 
question  is  by  the  same  hand  as  the  signature  to  the  deed  and 
will,  which  have  been  proven  to  be  the  genuine  signatures  of 
the  defendant  With  these  opinions  and  the  other  evidence  in 
the  case,  you  are  to  say  whether  the  same  hand  wrote  all  signa- 
tures. You  are  to  determine  the  weight  of  the  testimony  of 
these  experts.  If  you  determine  that  they  are  right  in  their 
opinions,  your  verdict  should  be  for  the  defendant. 

(a)  Alterations  in  date.  If  you  do  so  find  you  should  then 
consider  the  question  of  alterations.  These  alterations,  as 
claimed  by  defendant,  are  in  the  change  of  the  date  from  an 
early  to  a  later  date,  and  in  the  body  of  the  note  a  change  in 
the  principal.  If  these  changes  were  made  they  are  material 
changes,  and  if  the  plaintiff,  without  the  consent  of  the  defend- 
ant, made  the  alterations  after  the  note  was  delivered,  he  has  no 
right  of  action  on  this  note.  Has  the  note  been  altered?  The 
figures  at  the  left-hand  top  of  the  note  are  no  part  of  the  note, 
and  a  change  in  these  figures  is  not  material,  but  you  may  look 
at  any  alterations  in  those  figures  upon  the  question  whether 
there  was  any  alteration  of  the  date  or  amount  in  the  body  of 
the  note.     Still,  the  question  is,  have  any  alterations  been  made  ? 

Upon  this  question  the  burden  of  proof  is  on  the  defendant 
to  prove  that  these  claimed  alterations  were  made  after  it  was 
signed.  You  may  look  at  the  note  to  see  whether  any  alterations 
have  been  made  in  either  particular.  If  you  find  that  there  is 
no  alteration,  assuming  that  the  signature  of  the  note  is  the 
genuine  one  of  the  defendant,  your  verdict  will  be  for  plaintiff. 
If  the  note  was  altered,  and  the  burden  of  proof  of  that,  as  was 
said,  is  on  the  defendant,  you  will  then  inquire  whether  the 
alteration  was  before  or  after  the  defendant  signed  the  note. 
If  you  find  it  was  altered  after  defendant  signed  the  note,  the 


BILLS   AND   NOTES.  1245 

burden  of  proof  will  then  be  upon  the  plaintiff  to  prove  that 
it  was  altered  with  the  consent  of  the  defendant. 

If  the  note  was  signed  after  it  was  altered,  it  is  a  good  note. 
If  it  was  signed  before  it  was  altered  and  the  maker  consented 
to  the  alteration,  it  is  a  good  note.1 
i  Franklin   v.  Baker.  Ex'r,  48  0.  S.  296. 

Sec.  1565.     Transfer  of  note  after  maturity. 

The  jury  is  instructed  that  if  the  paper  was  transferred  after 
it  became  due,  and  it  no  longer  has  the  character  of  commercial 
paper  before  due,  if  it  was  transferred  after  it  was  due,  the 
person  to  whom  it  was  transferred  steps  simply  into  the  shoes 
of  the  person  that  transfers  it  to  him,  and  the  maker  of  the 
paper  can  then  urge  against  him,  if  he  sues  upon  the  paper,  the 
same  claim,  the  same  suit,  that  he  could  make  against  the  person 
to  whom  he  originally  gave  the  paper  if  he  sued  upon  it.1 
1  Solders,  J.,  in  Piatt  r.  Hazzard,  Sup.  Ct.,  unreported. 

Sec.  1566.     Endorsement  in  blank — Transfer  before  maturity. 

This  note  is  payable  to  the  order  of  J.  W.,  T.  H.  gives  him 
that  note ;  there  is  nothing  upon  the  face  of  the  note  to  indicate 
any  contract  made  at  the  time.  It  places  it  within  the  power  of 
T.  to  transfer  the  note  to  anybody.  He  has  signed  his  name 
upon  the  back  of  the  note  and  nothing  more,  which  is  known 
as  a  blank  endorsement,  and  that  authorizes  any  person  to  whom 
he  transfers  it  to  write  above  it  a  transfer  to  him,  or  a  transfer 
to  some  other  person.  In  other  words,  this  is  not  a  restrictive 
endorsement ;  that  is  to  say,  a  restrictive  endorsement  would  be 
to  a  particular  person  only.  The  note  is  not  given  to  T. 
individually,  but  it  is  given  to  him  witli  the  power  of  transferring 
it  to  anybody.  The  law  makes  that  paper  circulate  as  money 
before  due.  If  action  had  been  brought  upon  the  paper  by  T., 
then  Mr.  II.  could  offset  against  him  anything,  any  demand  that 
he  has  against  him,  and  especially  could  he  offset  this  $925.00, 
as  the  testimony  indicates  was  due,  and  which  the  plaintiff  does 
not  controvert.  If  that  contract  \\;is  made  fit  all  he  could  offsel 
this  against  this  note.     If  paper,  commercial  paper,  which  this 


1246  INSTRUCTIONS  TO   JURY. 

is,  is  transferred  before  due  to  another  person,  who  at  the  time 
pays  value  for  it,  such  person  holds  the  paper  free  from  all 
claims  and  set-offs — and  in  that  connection  I  wish  to  say  to  you 
that  this  man  P.  stands  upon  this  paper  as  an  endorsee,  holding 
the  paper.  That  where  the  endorsee  of  negotiable  paper  pays 
cash  therefor  he  is  a  purchaser  in  the  usual  course  of  trade, 
unless  the  fact  was  that  he  paid  for  the  note  a  sum  less  than  the 
fair  and  actual  value — not  necessarily  that  he  should  pay  the 
actual  value,  that  is  a  matter  of  agreement — but  if  it  is  trans- 
ferred before  due,  for  value  paid,  there  being  no  bad  faith,  or 
want  of  honesty  at  the  time  on  the  part  of  the  person  to  whom 
transferred,  he  takes  it  clear  from  any  claim  that  the  maker  of 
the  note  could  urge  against  the  person  to  whom  he  originally 
gave  it,  in  this  case  T.1 

"You  are  instructed  that  where  a  note  has  been  endorsed  in 
blank,  the  holder  of  the  same  may  fill  the  blank  with  the  name 
of  the  endorsee ;  that  the  endorsement  of  the  note  is  said  to  be 
in  blank  when  the  name  of  the  endorser  is  simply  written  on  the 
back  of  the  note,  leaving  a  blank  over  it  for  the  insertion  of  the 
name  of  the  endorsee,  or  of  any  subsequent  holder;  and  that  in 
such  a  case  while  the  endorsement  continues  blank,  the  note 
may  be  passed  by  mere  delivery,  and  the  endorsee  or  other 
holder  is  understood  to  have  full  authority  personally  to  demand 
payment  of  it,  or  make  it  payable  at  his  pleasure,  to  himself  or 
to  another  person. "  2 

i  Solders,  J.,  in  Piatt  r.  Hazzard,  Sup.  Ct.,  unreported. 
2  From  Palmer  v.  Marshall,  60  111.  292. 

Sec.  1567.     Liability  of  surety  on  note — How  revived — Effect 
of  subsequent  promise. 

' '  If  the  defendant 's  testator,  having  been  discharged  from  his 
liability  as  surety  upon  the  note  sued  on,  with  a  full  knowledge 
and  understanding  of  his  release  as  surety,  promised  the  holder 
or  payee  to  pay  the  note,  if  the  principal  did  not,  he  thereby 
revived  his  liability  as  surety,  and  such  subsequent  promise  was 
binding  without  any  new  consideration  to  support  it. "  * 
i  Bramble  v.  Ward,  40  O.  S.  267. 


BELLS    AND    NOTES.  1247 

Sec.  1568.  Extension  of  note — Consideration — Payment  of  in- 
terest in  advance. 
' '  The  payment  of  interest  in  advance  is  not  of  itself  conclusive 
of  a  contract  to  extend  the  time  of  the  payment  for  the  term 
for  which  interest  may  have  thus  been  paid,  but  it  is  a  strong 
circumstance  to  be  looked  to  by  the  jury  in  determining  the 
existence  of  the  contract  claimed."  1 
i  Gard  r.  Xeff.  39  O.  S.  607. 

Sec.  1569.     Alteration     of    note — What    constitutes — Adding 
words  "with  interest  at  per  cent." 

If  you  find  from  the  evidence  that  after  the  defendant  signed 
a  note  similar  in  all  respects  to  the  one  sued  on,  excepting  that 
the  written  words,  "with  interest  at  ten  per  cent.,"  and  that 
these  words  were  not  then  in  the  note,  but  that  the  printed 
words,  "with  interest  at  ten  per  cent,  per  annum  after  ma- 
turity," were  in  the  note,  and  that,  after  the  defendant  placed 
his  signature  thereon,  and  without  his  knowledge  or  consent,  the 
said  printed  words  were  stricken  out  and  the  said  written  words 
inserted,  and  that  such  an  alteration  of  the  note  was  made  by 
any  holder  of  the  note,  without  the  knowledge  of  the  defendant, 
it  would  be  a  material  alteration,  and  would  release  him  from 
all  liability  on  the  note.  And  if  the  defendant  proves  this  by 
a  preponderance  of  the  evidence,  the  verdict  must  be  in  his 
favor;  and  it  would  make  no  difference  whether  J.,  the  plaintiff, 
was  or  was  not  the  owner  of  the  note  at  the  time  of  the  alter- 
ation after  the  defendant  signed  it.1 
i  Brooks  v.  Allen,  62  Ind.  401. 

Sec.  1570.     Alteration — By   adding    name    of   third    person — 
Whether  material  or  not. 

The  jury  is  instructed  that  if  tliere  was  a  material  alteration 
of  the  note  after  its  execution  and  delivery,  with  the  consent 
of  its  holder,  but  without  the  knowledge  or  consent  of  K.,  such 
material  alteration  would  discharge  K.  from  any  liability  on 
the  note.     An  alteration  to  be  material  must  be  of  the  note  after 


1248  INSTRUCTIONS  TO   JURY. 

it  is  signed  and  delivered,  without  the  consent  of  the  person 
who  executed  it.  The  court  has  stated  the  rule  when  there  is 
a  material  alteration  of  the  note,  with  the  consent  of  its  holder, 
and  without  the  knowledge,  procuration,  or  consent  of  the 
maker,  it  releases  the  maker  of  the  note.  The  addition  of  the 
name  of  a  third  person  as  maker,  with  the  privity  of  the  holder, 
but  without  the  consent  of  the  original  signer,  is  a  material 
alteration  of  the  note,  which  discharges  such  original  signer. 
This  would  not  be  so,  however,  if  the  third  person  signed  the 
note  as  an  apparent  maker  through  inadvertence  or  mistake 
as  to  any  fact.  In  this  case  it  is  not  claimed  by  S.  that  there 
was  any  mistake  as  to  any  fact  relative  to  or  connected  with 
the  signing  of  his  name  on  the  note.  He  claims  in  his  testimony 
that  he  signed  the  note  for  the  single  purpose  of  vouching  that 
K.  was  worth  about  $3,000,  but  if  there  was  no  inadvertence  or 
mistake  of  fact  in  his  signing,  he  can  not  dispute  or  vary  the 
written  contract  above  his  name  which  he  signed.  When  he 
signed  this  paper  (the  note)  his  contract  was  in  writing,  and 
he  will  not  be  permitted  to  dispute  it,  unless  he  can  show  that 
there  was  some  inadvertence  or  mistake  as  to  some  fact.  Having 
signed  the  note  on  its  face  as  an  apparent  maker,  for  a  valuable 
consideration,  he  must  be  held  to  sustain  to  the  note  the  relation 
of  maker,  unless  he  can  show  that  there  was  some  inadvertence 
or  mistake  of  fact  relative  to  or  connected  with  such  signing. 
A  mistake  of  law  does  not  excuse  him.  Every  person  is  pre- 
sumed to  know  the  law,  and  he  is  not  permitted  to  say  he  did 
not  understand  the  legal  effect  of  his  act.  Before  signing  his 
name  Mr.  S.  was  what  is  called  a  "stranger"  to  the  note.  He 
would  have  been  prima  facie  a  guarantor  of  the  note  if  he  had 
placed  his  name  on  the  back  of  it,  in  that  case  there  would  be  a 
presumption  that  he  was  a  guarantor.  But,  being  a  stranger  to 
the  note,  and  signing  it  on  its  face,  signing  the  written  contract, 
the  written  contract  must  be  held  to  govern,  unless  he  shows 
that  there  was  some  mistake  of  fact,  not  of  law,  in  such  signing. 
No  one  pretends  to  say  that  he  didn't  read  the  contract.  No  one 
pretends  to  say  he  meant  to  sign  it  any  place  but  where  he  did 
sign  it.     If  you  find  that  the  defendant,  S.,  for  a  valuable  con- 


BILLS    AND    NOTES.  1249 

sideration,  signed  the  note  as  maker,  he  is  liable  on  the  same, 
unless  he  can  show  some  legal  reason  why  he  should  not  pay  it.1 
i  Price,  J.,  in  Smucker  v.  Wright,  Sup.  Ct.,  unreported. 

Sec.  1571.  Alteration  by  inserting  words  "to  be  paid  an- 
nually." 
The  defendants  claim  that  after  the  note  described  in  the 
petition  was  executed  by  said  M.,  and  without  the  consent  or 
knowledge  of  either  of  them,  the  plaintiff  altered  said  note  by 
inserting  or  causing  to  be  inserted  in  said  note  the  words  "to 
be  paid  annually"  after  the  word  interest.  Thus  by  said  alter- 
ation changing  the  terms  of  said  note,  making  the  interest  pay- 
able annually  instead  of  being  payable  when  the  note  became 
due,  and  that  they  have  never  since  ratified  said  alteration. 

Such  alteration,  if  made  as  claimed  by  defendants,  would  be 
a  material  alteration,  changing  the  effect  and  operation  of  said 
note,  and  upon  said  note  in  such  case  the  plaintiff  could  not 
recover  in  this  action,  unless  said  alteration  has  been  ratified 
by  the  defendants,  or  by  one  of  them. 

That  such  alteration  was  made  as  claimed  the  defendants 
must  prove  by  a  preponderance  of  the  evidence. 

Such  alteration,  if  made  by  a  party  not  interested  in  the 
note,  and  without  the  knowledge  or  consent  of  plaintiff  would 
not  affect  the  note. 

If  such  alteration  of  the  note  was  made  by  plaintiff,  as 
claimed,  and  if  afterward  the  defendants,  or  either  of  them, 
with  full  knowledge  of  such  alteration,  ratified  the  same  by 
part  payment,  or  by  direct  and  unconditional  promises  to  pay 
said  note,  then  said  defendants,  or  whichever  of  them  so  ratified 
such  alteration,  would  be  liable  on  said  note  as  altered,  and 
against  the  defendant  who  ratified  said  alteration  the  plaintiff 
can  recover.  Such  ratification  must  be  proved  by  the  plaintiff 
by  a  preponderance  of  the  evidence.1 

J  Miller  V.  Vollrath,  Sup.  Ct.,  Xo.  172S.  Judgments  <>f  lower  courts 
affirmed,  27  \V.  L.  B.  36.  Alteration  by  a  stranger  does  not 
vitiate,  Waring  v.  Smyth,  2  Barb.  Ch.  119;  Bank  r.  Roberts,  45 
Wis.  373,  1  Am.  and  Eng.  Enc.  of  Law,  .">().">.  See  also  Greenleafs 
Bv.,  sec.  550;  2  Daniel's  Neg.  Inst.,  sec.  i:57."5a.  Bruin  o.  Drum, 
133  Mass.  566. 


1250  INSTRUCTIONS  TO  JURY. 

Sec.  1572.    Demand  and  notice  essential  to  hold  endorser. 

It  is  conceded  that  said  defendant  0.  is  the  endorser  of  said 
note.  In  order  to  hold  said  0.  as  such  endorser  of  the  note  the 
plaintiffs  must  prove  by  a  preponderance  of  the  evidence  that 
demand  was  made  on  M. — that  is,  a  presentation  of  the  note  and 
a  request  to  pay  it  when  due  on  the day  of  February,  19 — . 

If  the  demand  was  made  on  M.  personally,  or,  if  he  was  gone 
from  home,  upon  any  agent  of  his  at  his  home  or  place  of 
business  whose  duty  it  was  to  transact  business  or  pay  money 
for  him;  if  there  was  no  agent  and  M.  was  away  from  home, 
then  at  the  house  of  his  wife  or  servant,  or,  in  the  absence  of 
wife  or  servant,  of  some  other  person  belonging  to  the  family, 
and  if  there  was  no  such  agent  and  no  person  at  home,  and  upon 
reasonable  inquiry  none  of  the  persons  I  have  named  could  be 
found  and  M.  was  gone,  no  demand  was  necessary. 

If  demand  was  made  and  payment  refused,  notice  of  such 
demand  and  nonpayment,  or  if  no  demand  could  be  made,  notice 
of  nonpayment  should  have  been  communicated  to  said  0.  by 
the  first  ordiary  means  of  giving  him  the  information  taking 
into  account  his  whereabouts.1 

The  endorser  may  waive  demand  and  notice  of  nonpayment, 
and  any  conduct  on  his  part  toward  the  plaintiff,  calculated  to 
put  a  person  of  reasonable  prudence  off  his  guard,  or  to  induce 
such  person  to  omit  demand  or  notice  of  nonpayment  will  dis- 
pense with  the  necessity  of  taking  such  steps.  That  such  demand 
was  made  and  notice  of  demand  and  nonpayment  was  given,  or 
that  the  same  was  waived  by  the  defendant,  0.,  the  plaintiff 
must  prove  by  a  preponderance  of  the  evidence.2 

i  By  mail,  Walker  v.  Stetson,  14  0.  S.  89.  By  the  next  mail  after  de- 
fault, Lawson  v.  Bank,  1  O.  S.  206.  By  mail  if  living  in  same 
town,  8  O.  507. 

2  From  Mills  v.  Vollrath,  Sup.  Ct.  No.  1728.  Judgments  of  lower  courts 
affirmed,  27  W.  L.  B.  36.  As  to  waiver,  see  Hale  v.  Danforth, 
46  Wis.  554. 

Sec.  1573.    Endorsement  of  note — Notice. 

You  are  instructed  that  an  endorsement  of  a  note,  that  is, 
the  writing  of  one's  name  upon  the  back  of  the  note,  is  an 


BILLS    AND    NOTES.  1251 

absolute  contract  in  writing  by  which  the  endorser  binds  himself 
to  pay  the  note,  if  on  presentment  the  maker  does  not,  provided 
due  notice  is  given  of  nonpayment. 

In  order  to  render  one  who  becomes  an  endorser  on  a  note 
not  liable  for  the  payment,  the  note  must  be  presented  at 
maturity  to  the  maker  for  payment,  and  if  payment  be  refused, 
notice  must  be  given  immediately  to  the  endorser,  and  whether 
this  has  been  done  is  a  question  of  fact  submitted  to  you  for 
determination.1 
i  Farr  v.  Bicker,  46  0.  S.  265. 

Sec.  1574.     When  maker  of  note  entitled  to  demand. 

You  are  instructed  that  it  is  not  generally  necessary  that 
presentment  or  demand  of  payment  be  made  at  a  specified  place 
of  the  maker  of  a  note  on  the  day  it  becomes  due  or  afterwards, 
in  order  to  maintain  a  suit  against  the  maker.  But  if  the 
maker  has  funds  at  the  appointed  place  where  the  note  is 
payable,  and  it  is  not  duly  presented,  he  will  be  exonerated 
from  the  payment  of  any  damages  that  may  have  been  sustained 
and  costs  of  suit,  but  will  not  be  relieved  from  the  payment  of 
the  note.1 
i  Bridge  Co.  v.  Savings  Bank,  46  O.  S.  224. 

Sec.  1575.     Forgery  as  a  defense — Estoppel  to  set  up. 

The  jury  is  instructed  that  one  may  by  his  conduct,  statements, 
or  silence  estop  himself  from  claiming  that  his  signature  to  a 
note  is  a  forgery,  but  before  he  can  be  estopped  by  mere  silence, 
it  must  be  made  to  appear  by  the  evidence  that  there  was  an 
obligation  and  duty  on  the  part  of  the  defendant  to  speak  out 
and  declare  the  fact  that  his  name  was  not  signed  to  the  note ; 
it  must  also  be  made  to  appear  that  he  had  an  opportunity  to 
speak,  that  he  also  knew,  or  had  reasonable  ground  to  believe 
that  the  plaintiff  as  holder  of  the  note  would  rely,  or  was  relying 
on  his  silence  concerning  the  signature,  and  that  plaintiff  so  relied 
upon  his  silence  and  that  he  was  injured  thereby.1 

If,  therefore,  the  jury  finds,  etc. 
lShinew    v.   Bank,  84  0.  S.   207,  Am.   Ann.  (as.,   1912,  C,  578  and   note; 
Veile  v.  Judson,  82  N.  Y.  32;    Wiser  V.  Lawler,  189  U.  S.  260. 


CHAPTER   LXXX. 
BREACH  OF  PROMISE  TO  MARRY. 


SEC. 

1576.  Contract  of  marriage. 

1577.  Breach    of    promise    of    mar- 

riage. 

1.  Contract    of    marriage — 

Its  nature — How  made. 

2.  Effect  of   physical   condi- 

tion or  impediment. 

3.  Request  to  perform  essen- 

tial to  action. 

4.  Deceit  as  to  age. 


5.     Claim    that    plaintiff    af- 
flicted with  disease. 

1578.  What  amounts  to  a  breach — 

Essentials  as  to  time. 

1579.  Promise  made   in   considera- 

tion    of     sexual      inter- 
course. 

1580.  Acts  of  preparation  of  mar- 

riage. 
1580a.     Measure  of  damages. 


Sec.  1576.    Contract  of  marriage. 

A  contract  of  marriage  consists  simply  in  a  promise  on  the 
part  of  the  one  to  marry  the  other,  and  in  a  promise  on  the  part 
of  the  other  to  marry  the  one.  It  is  a  mutual  promise,  the  con- 
sideration of  the  one's  promise  being  the  other's  promise. 

Contracts  of  marriage  may,  like  other  contracts,  be  either 
express,  that  is,  based  upon  actual,  particular  words,  a  direct 
proposition  on  the  one  part,  and  a  positive,  explicit,  verbal 
acceptance  of  the  proposition  by  the  other,  or  the  marriage 
contract  may  arise  by  implication;  that  is  to  say,  that  such  a 
contract  may  come  into  existence,  as  a  result  of  the  conduct 
and  demeanor  of  the  parties  by  their  acts  towards  and  treat- 
ment of  each  other,  by  frequency  of  association  together  and 
by  other  circumstances  of  like  nature.1 

i  May  be  shown  by  conduct.      Wetmore  v.  Mell,  1  O.  S.  26. 
Admissions  of  intention  to  marry  may  be  shown.      Cooper  v.  West,  3  W. 
L.  B.  431. 

Sec.  1577.     Breach  of  promise  of  marriage. 

1.  Contract  of  marriage — Its  nature — How  made. 

2.  Effect  of  physical  condition  or  impediment. 
1252 


BREACH    OF   PROMISE   TO    MARRY.  1253 

3.  Request  to  perforin  essential  to  action. 

4.  Deceit  as  to  age. 

5.  Claim  that  plaintiff  afflicted  with  disease. 

1.  Contract  of  marriage — lis  nature — How  made.  This  is  a 
case  for  the  breach  of  promise  of  a  contract  of  marriage.  A 
contract  of  marriage  according  to  the  law  of  the  land,  is  to  be 
considered  as  an  ordinary  civil  contract  attended  by  the  same 
legal  consequences  as  any  ordinary  civil  contract.  While  it  is 
the  foundation  of  all  society,  still  when  we  come  to  treat  it  in 
a  court  of  justice  it  is  to  be  regarded  as  an  ordinary  civil 
contract.  It  is  not  entered  into  with  the  same  formalities  as 
ordinary  civil  contracts,  and  it  may  not  be  entered  into  m  one 
case  like  it  would  be  in  another. 

The  contract  of  marriage  consists  simply  in  a  promise  on  the 
part  of  the  one  to  marry  the  other,  and  a  promise  on  the  part 
of  the  other  to  marry  the  one.  That  is,  it  is  a  mutual  promke 
between  a  man  and  a  woman  to  enter  into  the  marriage  relation. 
The  condition  of  the  contract,  in  law,  is  the  mutuality  of  the 
promises.  "Whereas,  the  consideration  in  morals  is  the  affection 
between  the  parties,  but  we  must  say  that  every  civil  contract 
is  founded  upon  a  consideration,  and  so  we  say  that  in  law  the 
consideration  for  a  contract  of  marriage  is  the  mutual  promise 
made  by  each  of  the  parties. 

Now  testing  this  kind  of  a  contract  as  we  do  ordinary  civil 
cases,  it  is  essential  to  constitute  a  contract  to  marry  that  there 
must  be  a  meeting  of  the  minds  of  the  contracting  parties.  That 
is,  there  must  be  an  offer  on  the  one  part  and  an  acceptance  on 
the  other.  Contracts  of  marriage  may  be  entered  into  by  their 
offer  and  acceptance.  Then,  on  the  other  hand,  contracts  of 
marriage  may  be  inferred  from  the  acts  and  the  declarations, 
and  from  the  conduct  of  the  parties ;  that  is,  if  the  acts  and  the 
declarations  and  conduct  of  the  parties  are  such  as  would  lead 
reasonably  prudent  men  to  believe  and  infer  that  the  parties 
intended  that  they  should  become  man  and  wife,  then  the  jury 
would  be  justified  in  concluding  under  such  circumstances  that 
a  contract  of  marriage  had  been  entered  into  by  the  parties. 


1254  INSTRUCTIONS  TO  JURY. 

2.  Effect  of  physical  condition  or  impediment.  As  I  stated, 
the  promises  being  mutual,  each  is  usually  the  consideration  for 
the  other.  Putting  it  more  concretely,  a  further  consideration 
may  enter  into  the  contract,  as  the  expectation  of  each  of  the 
parties  to  obtain  and  associate  in  the  marriage  relation,  with  one 
whose  physical  condition  is  free  from  any  serious  disease  which 
might  be  of  such  a  nature  and  character  as  to  unfit  either  party 
as  a  companion  in  the  marriage  relation.  Each  party  may  con- 
tract with  the  other  in  the  expectation  of  having  a  person  who 
can  be  a  comfort  and  a  satisfaction  in  every  way  in  the  marriage 
relation.  We  must  not  lose  sight  of  the  fact  that  we  are  dealing 
with  a  marriage  contract,  pure  and  simple,  however,  and  that 
such  a  contract  does  not  require  the  one  to  take  the  other  if 
such  other  person  is  in  an  imperfect  condition  by  reason  of 
having  a  serious  disease  which  might  entail  great  discomfort, 
expense  and  risk  in  the  marriage  relation.  But  if  it  appeal's 
from  the  evidence  that  there  was  no  physical  condition  or  impedi- 
ment existing  at  the  time  of  the  formation  of  the  contract,  if 
there  was  one  entered  into,  then  the  matter  of  the  complaint 
made  here  as  to  the  physical  condition  of  the  plaintiff  may  not 
be  considered  in  connection  with  the  formation  of  the  contract. 

3.  Request  to  perform  essential  to  action.  As  a  general  rule, 
it  may  be  said  that  when  an  obligation  is  entered  into  to  do  a 
certain  thing  in  the  future,  and  when  an  express  time  is 
indicated  within  which  the  thing  shall  be  done,  before  suit  can 
be  brought  for  the  breach  of  an  obligation,  there  must  be  a 
request  by  the  person  who  seeks  to  enforce  the  contract  of  the 
party  to  perform  his  obligation. 

And  the  marriage  contract  is  no  exception  to  this  rule  of  law, 
because  it  is  regarded  as  merely  a  civil  contract.  It  appears  in 
evidence,  however,  in  this  case,  that  the  defendant  himself  put 
an  end  to  whatever  relations  may  have  existed  between  the 
parties  in  this  case,  so  that  the  question  as  to  whether  or  not 
there  was  a  time  fixed  for  the  marriage  and  whether  the  plain- 
tiff requested  the  defendant  to  carry  out  and  perform  his 
contract  is  not  material. 


BREACH    OF    PROMISE    TO    MARRY.  1255 

4.  Deceit  as  to  age.  The  defendant  here  by  his  answer  claims 
that  the  plaintiff  deceived  him  as  to  her  age,  claiming  to  be 
several  years  younger  than  she  was  and  that  she  has  not  been 
truthful  and  fair  with  him  in  many  ways,  etc.  The  court 
instructs  the  jury  that  such  a  claim  does  not  in  law  constitute 
a  defense  in  this  kind  of  an  action,  but  the  jury  may  consider 
it,  if  it  is  supported  by  evidence,  by  way  of  mitigation  of 
damages. 

5.  Claim  of  affliction  ivith  disease.  The  court  will  now  instruct 
the  jury  as  to  the  claim  made  by  the  defendant  that  the  plaintiff 
was  afflicted  some  time  during  the  relations  existing  between  the 
parties  with  a  disease  known  as  tuberculosis. 

It  is  for  the  jury  to  determine  when,  if  at  all,  a  contract  of 
marriage  was  entered  into  between  the  parties  to  this  case,  and 
if  it  should  appear  to  the  jury  that  before  the  contract  of 
marriage  was  entered  into  between  them,  if  there  was  one,  that 
the  plaintiff  was  afflicted  with  the  disease  as  claimed  here,  then 
the  court  instructs  the  jury  that  the  rule  of  law  applicable  to 
such  a  case  is,  that  when  a  man  enters  into  an  engagement  of 
marriage  with  a  woman,  he  is  presumed  to  have  made  himself 
acquainted  with  her  appearance  and  her  physical  condition  so 
far  as  it  may  be  reasonably  apparent  to  him,  and  if  he  enters 
into  a  contract  of  marriage  with  knowledge  of  any  physical 
defects,  or  under  such  circumstances  that  he  should  be  charged 
with  knowledge  of  them  by  reason  of  their  apparent  condition, 
and  he  changes  his  mind  and  refuses  to  marry  the  woman,  the 
existence  of  such  a  disease  will  not  constitute  a  defense  to  an 
action  for  breach  of  promise. 

But  if  the  jury,  on  the  other  hand,  should  find  from  the  evi- 
dence that  the  plaintiff  and  the  defendant  entered  into  a  contract 

of  marriage  some  time  prior  to  the  month  of  ,  when  it  is 

claimed  by  the  defendant  t'uat  the  plaintiff  became  afflicted  with 
the  disease  of  tuberculosis,  then  the  court  instructs  che  jury  that 
the  law  applicable  to  such  a  situation  as  it  might  be  presented 
in  this  case  is  as  follows  ; 

The  defendant  claim',  that  the  disease  made  its  appearance 
about  the  time  as  just  stated,  and  that  this  physical  condition  on 


1256  INSTRUCTIONS  TO  JURY. 

her  part  continued  on  throughout  the  remaining  portion  of  the 
year  19 — ,  and  he  claims  that  he  became  discouraged  because 
of  such  disease  and  had  a  change  of  mind  and  attitude  towards 
the  plaintiff. 

The  court  has  already  pointed  out  the  light  in  which  the 
marriage  contract  is  considered  in  law  as  well  as  its  peculiar 
nature,  and  the  jury,  using  its  own  knowledge  of  the  char- 
acter of  the  disease,  which  it  is  claimed  plaintiff  had,  together 
with  any  evidence  offered  in  this  case  as  reflecting  thereon, 
may  consider  the  consequences  of  the  consummation  of  the 
marriage  contract  under  such  circumstances;  and  if  it  should 
appear  that  the  plaintiff  was  afflicted  with  the  disease  as  claimed, 
the  jury  may  consider  the  physical  condition  so  far  as  it  might 
affect  the  immediate  parties  to  the  contract. 

The  court  may  properly  state  that  the  law  should  not  enforce 
such  a  contract  under  the  conditions  claimed  here  with  the  same 
rigidness  as  this  class  of  contracts  is  generally  enforced  in  law. 
There  is  a  growing  tendency  of  opinion  that  the  marriage  rela- 
tion should  not  be  entered  into  between  parties  afflicted  with 
such  a  disease  as  the  one  claimed  because  it  is  considered  to 
be  incurable,  and  this  view  demands  some  attention  and  con- 
sideration in  the  matter  of  the  enforcement  of  a  marriage  con- 
tract under  such  conditions  as  is  claimed  to  exist  in  this  case. 
The  court  takes  the  position  that  if  it  should  appear  by  a  pre- 
ponderance of  the  evidence  in  this  case  that  the  plaintiff  became 
afflicted  with  the  disease  of  tuberculosis  which  became  known  to 
the  defendant,  then  he  would  have  a  right  upon  this  ground  to 
terminate  any  contract  of  marriage  that  might  be  existing 
between  them.  In  making  such  a  contract,  the  defendant  must 
not  be  held  bound  to  take  a  woman  who  may  have  a  disease  that 
might  unfit  her  as  a  wife  and  which  might  involve  him  in 
expense  and  risks  from  such  a  disease  as  is  complained  of  in  this 
case. 

Therefore,  the  court  instructs  the  jury  that  if  it  finds  that 
the  plaintiff  was  not  afflicted  with  the  disease  of  tuberculosis  at 
the  time  of  the  contract  of  marriage  as  claimed,  but  if  it  does 


BREACH    OF    PROMISE    TO    MARRY.  1257 

appear  that  such  a  disease  was  contracted  by  her  subsequently 
to  the  contract  of  marriage,  and  the  jury  finds  that  she  had 
such  a  disease,  and  that  the  defendant  broke  the  contract  of 
marriage  existing  between  them  for  this  sole  reason,  that  would 
in  law,  be  a  defense  in  this  action,  and  the  jury  should  in  such 
event  find  for  the  defendant.1 

But,  on  the  other  hand,  gentlemen,  if  you  should  find  that 
the  plaintiff  did  not  in  fact,  at  any  time  during  the  existence  of 
the  contract  of  marriage,  as  claimed,  have  the  disease  of  tubercu- 
losis, but  if  you  find  that  notwithstanding  this  fact  the  defendant 
in  good  faith  believed  that  she  had  such  disease,  and  had  reason- 
able grounds  for  such  belief,  and  that  he  broke  the  contract  of 
marriage  for  this  reason,  then,  you  may  consider  this  matter  not 
by  way  of  defense,  but  merely  for  the  purpose  of  mitigation, 
that  is,  reducing  the  damages  which  you  may  assess  against  the 
defendant,  if  you  find  that  a  contract  of  marriage  was  made 
between  the  parties,  and  that  the  same  was  broken  by  the 
defendant.2 

iSee  112  Pa.  St.  244. 

2  Temple  v.  Davis,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1578.     What  amounts  to  a  breach — Essentials  as  to  time. 

As  a  general  rule  it  may  be  said  that  when  an  obligation  is 
entered  into  to  do  a  certain  thing  in  the  future,  and  partly  when 
an  express  time  is  indicated  within  which  the  things  shall  be 
done,  before  suit  can  be  brought  for  the  breach  of  an  obligation, 
there  must  be  a  request  by  the  person  who  seeks  to  enforce  the 
contract  of  the  party  to  perform  his  obligation.  The  marriage 
contract  is  no  exception  to  this  rule  of  law,  being  regarded  by 
the  law  simply  as  a  civil  contract.  Before  there  can  be  a  breach 
of  the  contract  there  must  be  an  express  request  to  consummate 
the  marriage,  or  something  which  undo,"*  the  circumstances  of 
the  particular  case  removes  the  necessity  of  that  request.  A 
man  could  not  complain  of  a  woman  for  breach  of  promise  to 
marry  unless  he  requested  her  to  keep  her  engagement,  neither 


1258  INSTRUCTIONS  TO  JURY. 

can  a  woman  complain  of  a  man  for  breach  unless  there  is  a 
request  made  of  him. 

If  a  man  agrees  to  do  a  thing  within  a  reasonable  time  and 
afterwards  upon  being  requested  to  do  it  refuses,  then  he  has 
repudiated  his  obligation  and  broken  his  contract.  In  the 
absence  of  a  request  and  in  the  absence  of  indicative  circum- 
stances, he  may  intend  to  keep  or  he  may  intend  to  break  his 
contract,  but  it  may  be  important  to  see  what  his  intentions  are. 
If  it  can  be  said  that  he  intends  to  break  or  keep  his  contract, 
it  may  be  more  difficult  to  determine  and  to  say  that  he  has 
actually  broken  his  engagement. 

If  the  plaintiff  became  convinced  or  fearful  that  the  defendant 
did  not  intend  to  carry  out  his  part  of  what  was  understood  to 
be  their  engagement  to  marry,  she  might  have  gone  to  him  and 
verbally  tendered  herself  to  him,  and  requested  that  he  should 
marry  her  in  fulfillment  of  the  contract.  That  would  have  been 
a  perfect  and  thorough  compliance  with  the  law,  and  a  thing 
eminently  proper.  But  circumstances  may  intervene  which  will 
remove  the  necessity  for  this  explicit  action  upon  her  part. 

If  it  appears  from  the  evidence  that  there  was  an  engagement, 
and  that  the  defendant  himself  broke  that  engagement,  the  fact 
appearing  to  the  jury  either  by  the  acts  or  words  of  the  defend- 
ant, or  by  both  his  words  and  his  conduct,  then  it  is  not  necessary 
that  the  plaintiff  should  have  offered  herself  to  the  defendant  in 
marriage,  or  that  she  should  have  formally  requested  him  to 
marry  her  before  bringing  this  suit.  The  law  assumes  that  where 
a  man  is  under  an  obligation  to  fulfill  a  contract,  if  he  volun- 
tarily renounces  it,  he  puts  himself  in  the  attitude  of  refusing 
in  advance  to  carry  out  the  contract,  and  that  knowledge  is 
clearly  brought  home  to  the  other  contracting  party,  then  the 
necessity  for  the  offer  or  request  from  the  other  party  is  removed 
and  taken  away,  because  it  is  useless. 

If  you  find  that  there  was   a   contract   of  marriage,   and  a 
breach   of  that  contract  by  the  defendant,   the   only   question 
remaining  for  your  determination  is,  Was  the  plaintiff  damaged 
by  this  breach,  and  if  so,  in  what  sum  ? * 
i  Wright,  J.,  in  Hunter  v.  Graham,  Hamilton  Co.  Com.  Pleas. 


BREACH    OF    PROMISE    TO    MARRY.  '  1259 

Sec.   1579.    Promise  made   in   consideration   of   sexual   inter- 
course. 

If  you  find  from  the  evidence  that  the  defendant  did  promise 
the  plaintiff  to  marry  her,  but  that  the  inducement  for  fhe 
making  of  such  promise  by  the  defendant  was  that  the  plaintiff 
should  permit  him  to  have  sexual  connection  with  her,  then  I 
charge  you  that  such  promise  would  be  void,  and  the  defendant 
not  bound  by  it.  An  agreement  to  marry,  made  by  a  man  to 
a  woman  in  consideration  of  having  sexual  intercourse  with  her 
before  marriage  is  immoral  and  void.  "As  the  object  of  the  law 
is  to  repress  vice  and  immorality,  and  promote  the  welfare  of 
society,  all  promises  which  originate  in  a  breach  or  violation  of 
its  principles  and  enactments,  are  void.  This  law  will  not  there- 
fore lend  its  aid  to  enforce  any  contract  which  will  lead  to  the 
commission  of  crime  or  immorality,  or  which  is  subversive  of 
public  morality."  So  if  there  was  a  contract  of  marriage,  but 
it  was  made  on  condition  and  on  the  consideration  that  the 
plaintiff  should  allow  the  defendant  to  have  sexual  intercourse 
with  her  before  marriage,  such  contract  was  void  and  no 
recovery  can  be  had  for  its  breach,  it  being  founded  on  an 
immoral  consideration. 

"But  it  is  no  defense  if  the  promise  was  made  after  fornica- 
tion ;  if  made  with  no  view  to  a  repetition  of  the  offense,  or  before 
fornication,  if  that  was  not  the  consideration  of  the  promise,  if 
the  consideration  was  the  mutual  promise  of  marriage — the 
promise  of  each  to  marry  the  other — the  contract  was  a  valid 
one  notwithstanding  there  may  have  been  sexual  intercourse 
between  the  parties,  either  before  or  after  the  promise  was  made. 
If  it  appears  that  the  promise  was  made  by  the  defendant  with 
a  view  to  seduce  the  plaintiff,  and  that  the  defendant  thereby 
did  in  fact  seduce  the  plaintiff,  this  will  be  no  defense,  but  may 
go  to  the  jury  in  aggravation."  ' 

iWm.  E.  Evans,  J.,  in  Little  v.  Gearbart;  affirmed  51  O.  S.  580;  Sedg- 
wick Meas.  Dam.  455  (309).  As  to  promise  based  on  sexual  inter- 
course being  void,  see  Hanks  r.  Naglee,  54  Cal.  51;  Boigneres  v. 
Boulon,  54  Cal.  146;  Steinfeldt  v.  Levy,  Hi  Abb.  Pr.  (N.S.)  26; 
Goodall  v.  Thurman,  1  Head,  200. 


1260  INSTRUCTIONS  TO  JURY. 

"A  promise  to  marry  is  not  unfrequently  one  of  the  base  and  wicked 
tricks  of  the  wily  seducer  to  accomplish  his  purposes,  by  overcom- 
ing that  resistance  which  female  virtue  makes  to  his  unholy  designs. 
Whenever  seduction  follows  an  engagement  to  marry,  it  may  well 
be  asserted  that  the  promise  on  the  part  of  the  man  was  intended 
to  cover  his  designs  upon  her  virtue,  by  winning  her  affections  and 
confidence.  The  fact  that  the  hypocritical  suitor  is  prepared  to 
destroy  her  character,  shows  conclusively  that  it  was  not  his  inten- 
tion to  make  her  his  wife."    Goodall  v.  Thurman,  1  Head,  209. 

In  Hotchkins  v.  Hodge,  38  Barb.  117,  the  court  held:  "A  wrong  done  to 
the  female,  such  as  sexual  intercourse  with  her,  by  her  alleged 
suitor,  will  not  make  a  promise  to  marry,  founded  thereon  or 
arising  therefrom,  invalid  or  inoperative.  Such  «,  promise  is  not 
liable  to  the  objection  that  it  encourages  immorality." 


Sec.  1580.     Acts  of  preparation  for  marriage. 

Evidence  has  been  offered  to  prove  that  the  plaintiff  made 
some  preparations  for  marriage  by  procuring  bedding,  etc.,  and 
statements  by  her  at  the  time,  explanatory  of  such  acts  of 
preparation.  To  be  admissible  in  evidence  such  declarations 
must  be  made  at  the  time  of  such  alleged  act  of  preparation, 
must  be  concomitant  with  them,  and  explanatory  of  them ;  and 
such  acts  must  be  before  the  rupture  between  the  parties,  before 
the  breach  of  the  promise.  If  such  declarations  were  made,  but 
were  merely  narrative  of  a  past  occurrence  or  transaction,  or 
the  acts  of  which  they  were  explanatory  were  after  the  rupture 
between  the  parties,  they  are  incompetent  as  evidence,  and  you 
will  not  consider  them,  but  will  treat  them  as  excluded  from  the 
case.  If  such  declarations  were  made  and  were  concomitant 
with  and  explanatory  of  acts  of  preparation  for  marriage,  and 
such  acts  were  before  a  rupture  between  the  parties,  they  are 
competent  to  be  considered  by  you.1 

i  Evans,  J.,  in  Little  v.  Gearhart,  51  0.  S.  580;    Wetmore  v.  Mell,  1  O.  S. 

26. 
As  to  promisee's  conduct  in  getting  ready,  see  People  v.  Kenyon,  5  Parker's 

Cr.  C.  254:    and  her  declarations,  2  Am.  and  Eng.  Enc.  of  Law,  521. 

Declarations   to   strangers    of   the   fact    of   the    engagement   are   not 

competent  unless  part  of  the  res  gestae.       Stribley   v.   Welz,   8   O. 

C.  C.  571. 


BREACH   OF   PROMISE   TO    MARRY.  1261 

Sec.  1580a.    Measure  of  damages. 

If  you  find  in  favor  of  the  plaintiff,  you  will  award  her 
damages  to  indemnify  her  for  the  loss  she  may  have  sustained 
by  such  breach  of  promise.  This  would  embrace  the  injury  to 
her  feelings,  affections,  and  wounded  pride,  as  well  as  the  loss 
of  marriage. 

There  is  no  precise  rule  by  which  to  fix  the  amount  of  com- 
pensation. The  measure  of  damages  is  a  question  for  the  sound 
discretion  of  the  jury  under  the  circumstances  of  the  case  as 
disclosed  by  the  evidence.  This  is  to  be  sound  discretion 
uninfluenced  by  passion  or  prejudice;  and  the  amount  of 
damages  is  to  be  such  sum  as  the  jury,  exercising  such  judgment 
and  discretion  under  all  the  circumstances  of  the  case  as  shown 
by  the  evidence,  determine  and  find  is  proper  and  adequate  to 
indemnify  and  compensate  the  plaintiff  for  the  loss  and  injury 
so  sustained. 

If  the  defendant's  conduct  in  the  matter  of  the  promise  and 
breaking  it  (if  he  did  so)  was  ruthless  and  wanton  toward  the 
plaintiff,1  you  may,  if  you  think  it  proper  under  all  the  circum- 
stances of  the  case,  in  addition  to  compensatory  damages  award 
exemplary  damages  in  such  sum  as  you  think  proper  under  the 
circumstances.  The  entire  amount  of  the  award  can  not  exceed 
the  amount  claimed  in  the  petition.2 

i  Duvall  v.  Fuhrman,  3  O.  C.  C.  305. 

2Wm.  E.  Evans,  J.,  in  Little  v.  Gearhart.  Judgments  affirmed,  51  O.  S. 
580.  Seduction  may  be  shown  to  enhance  damages.  Matthews  v. 
Cribbett,  11  O.  S.  330.  Value  of  defendant's  estate  may  be  shown 
to  show  greater  loss.  8  0.  C.  C.  571,  3  0.  C.  C.  305,  and  subse- 
quent acquisitions  of  property  may  be  considered.      3  O.  C.  C.  305. 


CHAPTER   LXXXI. 
BRIBERY. 


SEC. 


1581.  Bribery— State  official— Aid-  5.     Intent  and  motive— Con- 

er      and      abettor— Com-  sideration  of  other  solic- 

plete  charge    (embracing  itations. 

subjects    shown    in    sec-  6.     Declarations     of     parties 

tional  heading).  —Received  with  caution. 

1582.  Solicitation   of  bribe.  1583.     Reputation   of   accusing  wit- 

1.  Statute      and      essentials  nesses. 

of   crime.  1584.     Bribery     of     city     official  — 

2.  Solicitation       of  —  What  Form  of  complete  charge, 

constitutes.  embracing     subjects 

3.  Same — Intent.  shown  in  sectional  head- 

4.  Jury  to  determine  mean-  ing. 

ing  of  language  used. 

Sec.  1581.     Bribery— State  official— Aider  and  Abettor— Com- 
plete  charge  embracing: 

1.  Preliminary  admonitions  because  of  importance  of  case. 

2.  Jury   cautioned  not   to  draw  inferences  from   rejected 

testimony. 

3.  The  charge  in  the  indictment. 

4.  Plea  and  burden  of  proof. 

5.  Presumption  of  innocence. 

6.  A  reasonable  doubt. 

7.  Duty  of  jurors  to  confer  with  each  other. 

8.  Credibility  of  witnesses — A  full  statement  as  to. 

9.  Same — Dictagraph. 

10.  Criminal  cJiarges  against  witnesses. 

11.  Reputation  of  defendant  for  honesty  and  integrity. 

12.  Law  as  to  bribery. 

13.  Same — To  solicit  a  bribe. 

14.  Same — To  influence  official  duty. 
1262 


BRIBERY.  1263 

15.  Same — The  bribe  need  not  be  the  only  consideration  to 

influence. 

16.  The  intent. 

16a.  Jury  the  sole  judges  of  meaning  of  language  used. 
16b.  Laic  as  to  aider  and  abettor. 

17.  Conspiracy    between    defendants    and    others    to    obtain 

money. 

18.  Entrapment    into   crime — Status   of   thosi    participating 

therein. 

19.  Defendant  may  be  guilty  though  entrapped. 
19-a.  Detectives  not  aiders  and  abettors. 

20.  Immunity  of  detectives  entrapping. 

21.  Final  instruction  to  jury  as  to  their  duty  and  verdict. 

1.  Preliminary  admonitions  because  of  importance  of  case. 
The  judge  and  the  jury  in  this  case  constitute  the  court 
established  by  the  constitution  and  laws  of  this  state  for  the 
administration  of  justice  as  between  the  commonwealth  r.nd  the 
defendant.  The  majesty  of  the  law  is  in  our  hands  for  the  time 
being  and  it  is  the  duty  to  do  equal  justice  as  between  the  state 
and  the  defendant.  There  is  no  higher  function  falling  to  the 
lot  of  men  than  the  administration  of  justice. 

In  the  performance  of  these  duties  the  court  and  jury  must 
be  moved  by  the  highest  and  most  solemn  sense  of  duty.  If 
we  are  not  actuated  by  a  desire  to  perform  our  whole  duty 
courageously  and  impartially,  we  will  not  be  entitled  to  the 
respect  and  confidence  of  the  people  of  the  state. 

Society  demands  no  higher  duty  than  purity,  impartiality, 
courage  and  intelligence  in  the  performance  of  any  public  duty. 
And  among  all  the  public  duties  which  men  are  called  upon  to 
perform  under  the  laws  of  society,  one  of  the  most  important 
rests  upon  the  jury,  selected  from  the  common  people,  which 
is  the  final  arbiter  of  the  facts  concerning  the  alleged  violation 
of  law  or  of  public  duty  involved  in  this  case.  In  all  your 
deliberations  you  should  exercise  the  judgment  of  candid,  intelli- 
gent men,  men  who  are  anxious  only  to  get  at  the  truth.  The 
question  involved  in  this  case  is  of  vital  importance  to  the  state 
and   to   the   defendant.     The   citizenship   of  the  state   and  the 


1264  INSTRUCTIONS  TO  JURY. 

defendant  will  be  satisfied  with  a  fair,  intelligent,  impartial  con- 
sideration and  determination  by  you,  gentlemen  of  the  jury,  in 
this  case. 

It  is  essential  to  the  welfare  of  society  and  good  government 
that  every  guilty  man  shall  be  punished  when  his  guilt  is 
established  by  the  measure  of  proof  required  to  convict  of  crime 
in  a  court  of  justice.  It  is  equally  essential  to  the  welfare  of 
society  and  of  good  government  that  there  shall  be  no  con- 
viction of  a  person  if  there  is  a  reasonable  doubt  of  his  guilt. 

The  importance  of  your  duties  admonish  you  that  your  verdict 
shall  be  reached  with  great  care,  uninfluenced  by  anything  except 
the  evidence  admitted  in  this  case  and  the  law  applicable  thereto, 
and  that  it  shall  be  the  result  of  purity  of  mind  and  of  your 
soundest  and  best  judgment  upon  the  whole  case. 

2.  Jury  cautioned  not  to  draw  inferences  from  rejected  testi- 
mony.    Instructions  are  based  on  different  phases  of  evidence. 

The  court  admonishes  you  that  you  shall  not  draw  any  deduc- 
tions, either  favorable  or  unfavorable  to  either  side  of  this 
case,  by  any  offers  of  testimony  which  the  court  rejected  or  from 
any  questions  which  may  have  been  asked  of  witnesses  which  the 
court  did  not  permit  to  be  answered. 

The  court  wishes  the  jury  to  know  and  understand  that  these 
instructions  which  are  given  you  are  based  upon  the  evidence 
in  this  case  and  upon  the  different  phases  thereof,  so  as  to  enable 
you  to  decide  the  questions  of  fact  submitted  to  you  by  the 
application  of  the  law  thus  given  you.  The  jury  being  unac- 
quainted with  the  law,  the  court  requests  that,  as  this  charge 
is  in  writing  and  will  be  placed  in  your  hands,  you  may  read 
it  yourselves  in  your  jury  room,  so  that  you  may  make  no 
mistake  in  the  application  of  the  law. 

3.  The  charge  in  the  indictment.  (Omitted.  It  can  be  sup- 
plied in  each  case.) 

4.  Plea  and  burden  of  proof.  To  this  indictment  the  defend- 
ant has  entered  a  plea  of  not  guilty  which  puts  in  issue  and 
denies  each  and  every  averment  thereof. 

This  plea  of  defendant  places  upon  the  state  the  burden  of 
proof.     It  is  incumbent  upon  the  state  before  it  can  ask  a  con- 


BRIBERY.  1265 

viction  by  your  verdict  to  establish  to  your  satisfaction  beyond 
a  reasonable  doubt  the  truth  of  each  of  the  averments  essential 
to  constitute  the  crime  charged. 

5.  Presumption  of  innocence.  The  indictment  creates  no  pre- 
sumption of  guilt  against  the  defendant.  On  the  contrary,  the 
law  presumes  every  one  charged  with  crime  to  be  innocent  until 
his  guilt  is  established  beyond  a  reasonable  doubt.  Tlie  defend- 
ant is  entitled  to  this  presumption  in  the  consideration  of  this 
case  and  until  the  jury  believe  beyond  a  reasonable  doubt  that 
the  evidence  establishes  his  guilt.  The  degree  of  proof  to  be 
applied  in  criminal  cases  and  in  this  case  is  proof  of  guilt  beyond 
a  reasonable  doubt. 

6.  Reasonable  doubt — Rather  full  explanation.  A  reasonable 
doubt  is  an  honest  uncertainty  existing  in  the  minds  of  a  candid, 
impartial,  diligent  jury,  after  a  full  and  careful  consideration 
of  all  the  testimony  with  an  honest  purpose  to  ascertain  the 
truth,  irrespective  of  the  consequences  which  may  follow  the 
verdict  of  the  jury.  It  is  not  a  mere  captious  or  speculative 
doubt,  one  voluntarily  excited  in  the  mind  in  order  to  avoid  the 
rendition  of  a  disagreeable  verdict ;  it  is  not  a  doubt  created  by 
any  personal  feeling  of  sympathy,  or  of  opinion  or  policy  not 
based  upon  the  testimony ;  it  is  not  a  doubt  prompted  by  the 
prejudice  of  the  jury  which  may  arise  in  the  minds  of  the  jury 
from  anything  occurring  in  the  evidence  and  contrary  to  any 
rule  of  law  which  the  court  has  given  to  you.  You  are  bound 
to  follow  the  instructions  of  the  court  as  to  all  matters  and  you 
should  not  permit  yourselves  to  create  in  your  mind  any  doubt 
that  may  arise  from  any  feeling  which  you  may  have  with 
respect  to  any  feature  of  this  case  which  is  not  founded  upon 
the  evidence  and  the  law  as  given  you  by  the  court.  Such  a 
doubt  would  be  considered  in  law  as  merely  a  captious  and  as  an 
unreasonable  one.  To  acquit  upon  trivial  suppositions  and 
remote  conjectures  is  a  violation  of  your  oath  and  an  offense  of 
great  magnitude  against  the  interests  of  society,  directly  tending 
to  the  disregard  of  the  obligation  of  the  judicial  oath  and  counte- 
nancing a  disparagement  of  justice  and  the  encouragement  of 


1266  INSTRUCTIONS  TO  JURY. 

malefactors.  On  the  other  hand,  the  jury  ought  not  to  condemn 
unless  the  evidence  removes  from  your  minds  all  reasonable 
doubt  as  to  the  guilt  of  the  accused  and  you  would  venture  to 
act  upon  it  in  a  matter  of  the  highest  concern  or  importance  in 
your  own  interest. 

You  will  be  justified  and  are  required  to  consider  a  reasonable 
doubt  as  existing  if  the  material  facts,  without  which  guilt  can 
not  be  established,  may  fairly  be  reconciled  with  innocence.  In 
human  affairs  absolute  certainty  is  not  always  obtainable;  from 
the  nature  of  things,  reasonable  certainty  is  all  that  can  be 
attained  on  many  subjects.  When  a  full  and  candid  considera- 
tion of  the  evidence  produces  a  conviction  of  guilt  and  satisfies 
the  mind  to  a  reasonable  certainty,  a  mere  captious,  or  ingenious, 
or  artificial  doubt  is  of  no  avail.  If  a  consideration  of  all  the 
evidence  satisfies  you  of  the  defendant's  guilt,  you  will  return 
a  verdict  of  guilty;  if  you  are  not  so  satisfied,  but  a  reasonable 
doubt  or  uncertainty  as  to  the  guilt  of  the  defendant  exists  in 
your  minds,  it  is  your  duty  to  acquit  the  defendant. 

Whether  or  not  the  proof  of  the  guilt  is  established  beyond  a 
reasonable  doubt  need  not  necessarily  be  shown  by  the  greater 
number  of  witnesses,  but  may  be  determined  by  the  jury  by 
the  greater  weight  of  the  evidence  which  convinces  the  jury 
of  guilt  beyond  a  reasonable  doubt,  the  degree  of  evidence 
required  in  criminal  cases.  If  your  judgment  so  demands,  you 
many  conclude  that  the  guilt  of  the  defendant  is  established 
beyond  a  reasonable  doubt,  notwithstanding  a  less  number  of 
witnesses  may  have  given  their  testimony  on  one  side  or  the 
other.  A  reasonable  doubt  should  not  be  made  to  rest  upon  a 
limited  number  of  witnesses  so  long  as  the  jury  believe  from  the 
evidence  that  the  guilt  of  the  defendant  is  made  to  appear 
bej^ond  a  reasonable  doubt. 

7.  Duty  of  jurors  to  confer  with  each  other.  It  is  the  duty  of 
the  jurors  to  confer  with  each  other  to  give  careful  consideration 
to  the  views  which  may  be  expressed  by  any  of  you  while  you 
are  considering  your  verdict.  A  juror  should  not  turn  a  deaf 
ear  to  the  views  of  his  fellow  juror  or  jurors  and  without  listen- 


BRIBERY.  1267 

ing  to  arguments  or  reasons  advanced  by  a  fellow  juror  abso- 
lutely stand  by  his  own  opinion  in  the  matter,  regardless  of  what 
may  be  said  by  other  jurors.  It  must  be  the  object  of  all  of  you 
to  arrive  at  a  common  conclusion  and  to  that  end  you  should 
deliberate  together  with  calmness  and  be  considerate  of  each 
other's  views.1 

8.  Credibility  of  witnesses — A  full  statement  as  to.  The  jury 
in  considering  the  credibility  of  witnesses  should  consider  their 
interest  in  the  liberty  of  the  accused,  their  opportunity  to  see 
and  know  the  facts,  the  consistency  of  their  testimony  with  all 
the  facts  and  circumstances  appearing  in  the  case. 

The  credibility  of  the  witnesses  is  within  the  sole  discretion 
of  the  jury.  In  determining  this  question,  you  should  use 
your  common  sense  and  best  judgment.  It  is  permissible  and 
customary  for  the  court  to  direct  the  attention  of  the  jury  to 
certain  recognized  tests  which  may  or  may  not  be  applied  in 
the  discretion  of  the  jury.  You  can  not  look  into  men's  minds 
and  discover  whether  they  are  telling  the  truth  or  falsehood, 
although  you  may  look  to  and  consider  their  appearance  and 
demeanor  upon  the  witness  stand.  You  may  judge  from  out- 
ward appearances,  by  the  reasonableness  of  the  testimony  under 
all  the  circumstances  of  the  case,  and  by  conflicting  statements 
or  partial  admissions  or  denials,  if  these  suggest  to  your  minds 
the  truth  or  falsity  of  any  testimony  that  may  be  given. 

When  two  or  more  witnesses  testify  to  radically  different 
statements  or  to  statements  which  partially  harmonize  and 
partially  disagree,  the  sanctity  of  the  oath  may  be  unavailing 
and  the  jury  are  then  called  upon  to  determine  which  one  was 
most  likely  to  falsify.  When  there  is  conflict  between  the  testi- 
mony of  witnesses,  the  jury  may  or  may  not  give  the  preference 
to  the  testimony  of  a  witness  or  witnesses  who  have  the  least 
inducement  from  interest  in  the  result  of  the  verdict  or  from 
other  motives  to  testify  falsely.  And  when  there  is  conflict 
between  the  testimony  of  witnesses,  you  may  consider  whetber 
one  or  the  other  is  corroborated  by  another  witness  who  is  wholly 


i  Davis  v.  State,  63  O.  S.  173,  174. 


1268  INSTRUCTIONS  TO   JURY. 

interest  of  a  witness  to  avoid  a  conviction  of  the  defendant  on 
trial,  if  any  such  desire  or  interest  you  may  believe  any  witness 
to  have  had.  Or,  you  may  consider  whether  a  witness  has  or 
has  not  a  desire  to  secure  a  conviction  for  any  reason  other  than 
an  honest  desire  to  bring  a  person  charged  with  crime  to  justice. 
When  there  is  sharp  conflict  you  may  consider  whether  a  witness 
is  or  is  not  consistent  in  all  his  statements;  whether  or  not  any- 
thing connected  with  his  statements  supports  or  fails  to  support 
his  testimony.  You  may  consider  the  relation  which  each  witness 
bears  to  the  case,  his  means  of  information,  fallibility  or  infal- 
libility of  memory ;  possibility  of  mistake  in  repetitions  of  con- 
versation; or  the  likelihood  or  want  of  likelihood  of  adding  to 
or  subtracting  from  a  conversation;  unity  of  interest;  motives, 
if  any,  that  might  lead  a  witness  to  swear  falsely  or  otherwise; 
whether  the  motives  for  relating  the  facts  testified  to  are  wholly 
to  bring  a  guilty  person  to  justice  or  to  enable  a  guilty  man  to 
escape ;  or  whether  his  sole  motive  was  to  tell  the  truth  without 
regard  to  consequences ;  whether  or  not  any  witness  was  in  a 
situation  that  might  tend  to  make  him  warp  his  evidence,  or 
Avhether  he  was  so  situated  that  he  had  no  reason  to  testify 
falsely.  You  may  consider  the  probability  or  the  improbability 
of  the  truth  of  the  statements  made  by  a  witness.  You  need  not 
believe  the  statements  of  a  witness  merely  because  he  made 
them ;  you  may  believe  a  part  or  disbelieve  a  part.  The  fact  that 
a  witness  is  jointly  indicted  for  the  same  offense  with  the  defend- 
ant, and  for  which  the  defendant  is  on  trial,  may  be  considered 
by  you  in  fixing  the  credit  you  will  give  to  the  testimony  of 
such  witness. 

9.  Sam.c — The  dictagraph.  In  connection  with  the  subject  of 
credibility  of  witnesses,  the  court  may  appropriately  speak  of 
the  dictagraph  which  has  made  its  first  appearance  in  a  court 
of  justice.  You  have  heard  the  testimony  of  its  inventor  and  of 
the  other  witnesses  concerning  its  use  and  operation  in  the 
communication  of  the  human  voice  from  one  room  to  another. 
Counsel  in  the  case  entered  into  an  agreement  to  let  Exhibit  L, 
which  is  the  stenographic  transcript  of  the  conversations  which 


BRIBERY.  1269 

the  witness  Walcutt  heard,  go  in  as  the  testimony  of  the 
stenographer,  which  was  read  by  the  witness  to  the  jury.  The 
court  permitted  this  testimony  to  he  admitted  in  evidence  to 
be  considered  by  the  jury  in  connection  with  all  the  other  evi- 
dence in  determining  the  credibility  of  witnesses  and  the  guilt 
or  innocence  of  the  defendant. 

10.  Criminal  charges  <i</<unst  witnesses.  Some  testimony  has 
been  admitted  concerning  criminal  charges  made  against  a  wit- 
ness who  has  testified  in  this  case.  The  law  permits  evidence  to  be 
introduced  of  a  conviction  of  a  witness  of  a  felony,  that  is,  an 
offense  punishable  by  imprisonment  in  the  penitentiary,  to  be 
considered  by  the  jury  on  the  question  of  credibility  for  what- 
ever it  is  worth  in  the  estimation  of  the  jury.  The  jury  will 
consider  all  of  the  evidence  on  this  matter,  the  oral  testimony  of 
witness  as  well  as  the  record  offered  in  evidence. 

11.  Reputation  of  defendant  for  honesty  and  integrity.  Testi- 
mony has  been  introduced  touching  the  reputation  of  the  defend- 
ant for  honesty  and  integrity  and  also  as  to  his  character.  A 
person's  reputation  for  honesty  and  integrity  is  established  by 
what  his  neighbors  and  the  persons  with  whom  he  generally 
associates  in  a  community  generally  say  of  him  in  this  regard  or 
it  may  be  established  by  the  fact  that  nothing  has  been  said 
derogatory  thereto.  If  people  generally  say  he  is  dishonest,  that 
would  make  his  reputation  for  honesty  and  integrity  bad.  On 
the  other  hand,  if  a  man's  associates  in  a  community  say  nothing 
Avhatever  about  him  as  to  his  honesty  and  integrity,  that  fact  of 
itself  would  be  evidence  that  his  reputation  for  honesty  and 
integrity  is  good.  The  reputation  of  a  person  for  honesty  and 
integrity  must  appear  to  be  general  in  a  community  where  he 
lives  or  in  a  community  where  he  may  temporarily  reside  for  a 
sufficient  length  of  time  to  acquire  a.  general  reputation.  The 
general  reputation  must  appear  from  what  people  in  general 
say  of  him  in  the  community. 

The  character  of  a  man  is  what  he  actually  is  and  not  what 
people  may  say  of  him.  Testimony  has  been  offered  here  touch- 
ing the  character  of  the  defendant  for  honesty  and  integrity. 


1270  INSTRUCTIONS  TO  JURY. 

This  court  has  permitted  this  testimony  to  be  offered  for  the 
consideration  of  the  jury  in  connection  with  all  the  other  evi- 
dence in  the  case  for  whatever  bearing  it  may  have  in  the  minds 
of  the  jury  touching  the  charges  made  by  the  indictment  herein 
against  the  defendant. 

12.  Law  as  to  bribery.  As  the  indictment  charges  that  the 
defendant,  D.,  aided  and  abetted  one  A.  in  the  crime  of 
soliciting  and  accepting  a  bribe  to  influence  him  in  his  official 
action  as  a  member  of  the  Senate  of  the  Ohio  General  Assembly, 
it  will  be  necessary  for  the  court  to  instruct  the  jury  as  to  the 
law  concerning  the  charge  made  against  A.  The  statute  of 
Ohio  under  which  this  indictment  is  preferred,  section  12,823, 
reads  as  lollows : 

"Whoever  being  a  member  of  the  General  Assembly  or  a 
state  or  other  officer,  *  *  *  agent  or  employe  of  the  state, 
either  before  or  after  his  election,  qualification,  appointment  or 
employment,  solicits  or  accepts  any  valuable  or  beneficial  thing 
to  influence  him  with  respect  to  his  official  duty,  or  to  influence 
his  action,  vote,  opinion  or  judgment  in  a  matter  pending,  or 
that  might  legally  come  before  him,"  is  guilty  of  the  crime 
known  as  bribery. 

The  jury  will  bear  in  mind  that  the  crime  charged  against  A. 
is  that  of  both  the  solicitation  and  acceptance  of  money  to 
influence  him  in  his  official  capacity.  The  jury  will  understand 
that  it  is  a  crime  to  solicit  any  valuable  thing  to  influence  his 
official  action  and  that  it  is  also  a  distinct  and  separate  crime 
to  accept  any  valuable  thing  to  influence  his  official  action ;  and 
that  the  said  A.  is  charged  with  both  these  crimes  and  that  the 
defendant  D.  is  charged  with  aiding  and  abetting  the  said  A. 
in  the  commission  of  both  these  crimes. 

Before  you  can  find  the  defendant  guilty  of  the  crime  charged, 
you  must  first  be  satisfied  beyond  a  reasonable  doubt  of  the 
existence  of  the  following  essential  facts:     (Omitted.) 

13.  Sam,e — To  solicit  a  bribe.  To  solicit  any  valuable  thing 
by  a  member  of  the  General  Assembly  to  influence  him  in  respect 
to  this  official  duty,  imports  an  initial,  active  and  wrongful  effort 


BRIBERY.  1271 

by  such  person.  A  charge  of  solicitation  of  any  valuable  thing 
to  influence  a  defendant  in  respect  to  his  official  duty  as  a 
member  of  the  General  Assembly  or  to  influence  his  action, 
vote,  opinion  or  judgment,  as  contemplated  by  the  statute, 
involves  the  idea  of  a  mental  attitude  on  the  part  of  a  defendant 
that  he  might  be  influenced  in  his  official  capacity. 

To  warrant  the  finding  by  the  jury  that  A.  solicited  a  bribe 
from  H.,  you  must  find  that  in  a  conversation  between  II.  and  A., 
the  latter  used  language  which  the  jury  believes  was  intended  to 
be  a  solicitation  by  said  A.  of  money  to  influence  his  official 
action,  vote  or  judgment ;  or  you  must  find  that  the  defendant 
was  authorized  to  solicit  money  for  or  on  behalf  of  A.  and  that 
D.  did  so  solicit  money  from  II.  for  A.  and  to  influence  his 
official  action  and  duty ;  or  you  must  find  that  D.  solicited  money 
for  A.  to  influence  his  official  duty  and  action  which  was  ratified 
and  approved  by  said  A.  with  an  intent  and  purpose  to  influence 
his  official  action. 

If  you  find  that  the  said  A.  accepted  money  from  H.  or  S. 
with  intent  and  purpose  of  influencing  his  official  action,  vote, 
opinion,  or  judgment  on  the  bill  mentioned  in  the  indictment, 
that  said  bill  was  pending  and  might  come  before  him,  then 
you  would  be  warranted  in  concluding  that  said  A.  was  guilty 
of  accepting  a  bribe  as  charged  in  the  indictment. 

In  determining  whether  A.  solicited  a  bribe,  or  whether  D. 
aided  and  abetted  in  the  solicitation  thereof,  the  jury  will  look 
to  the  conversations,  if  any,  had  between  these  parties,  and 
determine  therefrom  whether  said  A.  intended  to  solicit  money 
from  H.  to  influence  him,  A.,  in  his  offieial  capacity  as  a 
member  of  the  General  Assembly  by  the  receipt  of  some  valuable 
thing  from  or  through  H. 

It  must  be  found  by  you  that  the  language  used  by  A.  or 
by  D.  acting  for  and  on  behalf  of  A.  in  the  matter,  disclosed  a 
purpose  and  intent  to  secure  some  valuable  thing  that  he,  A., 
might  be  influenced  thereby  in  his  official  action. 

14.  Same — To  influence  official  duty.  It  need  not  be  shown 
that  A.  would  be  influenced  in  a  particular  way;  the  essential 


1272  INSTRUCTIONS  TO  JURY. 

thing  is,  that  you  find  that  A.  made  such  statements  to  H.  or  S. 
as  showed  that  he  solicited,  or  requested,  the  payment  of  money, 
or  accepted  money,  to  influence  him  in  his  official  duty  in  some 
way  concerning  the  bill  described  in  the  indictment.  But  the 
court  states  to  the  jury  that  the  forming  and  expressing  of  an 
opinion  or  judgment  in  favor  of  the  bill  in  question,  or  the 
voting  for  the  bill,  were  not  all  the  acts  that  the  defendant  as  a 
member  of  the  Senate  of  the  Ohio  General  Assembly  could 
officially  do  in  relation  to  the  same.  As  a  member  of  the  legisla- 
ture, it  was  competent  for  the  said  A.  to  ask  or  induce  other 
members  to  vote  for  the  bill,  to  ask  other  members  of  the  com- 
mittee in  whose  hands  it  was  to  vote  to  put  it  on  its  passage 
and  to  collect  facts  and  reasons  for  the  passage  of  the  bill.  That 
would  be  official  action,  official  duty.  As  a  member  of  the 
legislature  the  said  A.  had  no  right  or  authority  under  the 
bribery  law,  or  any  other  law  appertaining  to  his  official  position, 
to  solicit  or  ask  from  any  one,  or  to  invite  any  one,  to  give  or 
pay  him  any  money,  either  by  himself  or  by  and  through  any 
person  acting  for  and  on  his  behalf  in  that  matter.  Whatever 
he  did  or  was  intending  to  do>  on  those  lines  and  in  respect  to 
the  bill  mentioned  in  the  indictment,  he  was  bound  to  do  as  the 
representative  of  the  public,  and  he  had  no  right  to  be  influenced 
by  any  valuable  or  beneficial  thing,  except  his  salary,  which  was 
provided  by  law. 

15.  Same — The  bribe  need  not  be  the  only  consideration  to 
influence.  It  is  not  incumbent,  upon  the  state  in  making  out  its 
case  that  it  shall  show  that  the  said  A.  solicited  or  accepted  the 
money,  if  any  was  so  solicited  or  accepted  by  him,  that  it  was 
to  be  the  only  consideration  that  was  to  influence  him  in  respect 
to  his  official  duty  or  his  action,  vote,  opinion  or  judgment 
relative  to  the  bill.  He  may  have  been  influenced  by  his  own 
convictions  concerning  the  bill  to  support  it.  The  law  does  not 
require  the  state  to  prove  that  the  solicitation,  request  or  invita- 
tion for  the  money  or  the  acceptance  thereof  was  to  be  the  sole 
inducement  to  any  action  that  the  said  A.  might  take  on  any 
vote  that  he  might  cast  or  any  opinion  or  judgment  that  he  might 


BRIBERY.  1273 

form  or  express.  It  is  essential,  however,  that  it  shall  be  made 
to  appear  by  the  evidence  that  at  the  time  of  the  alleged 
solicitation  or  acceptance  of  the  money  by  said  A.,  or  it  must 
be  made  to  appear  in  some  other  way,  that  the  said  A.  solicited 
and  accepted  the  money  with  the  intent  and  purpose  of  influenc- 
ing his  official  action  as  a  member  of  the  legislature,  either  in 
his  vote,  opinion  or  judgment,  or  with  the  intent  and  purpose 
of  enabling  said  A.  to  exert  official  action  in  respect  to  the  bill 
described  in  the  indictment. 

16.  The  intent.  In  determining  the  intent  of  the  said  A.,  the 
jury  may  consider  the  evidence  as  to  the  alleged  conversations 
had  between  the  said  A.  and  H.,  or  between  the  said  II.  and  the 
defendant  D.  in  respect  to  this  transaction  when  the  alleged 
solicitation  or  acceptance  of  the  money  is  said  to  have  taken 
place,  provided,  however,  that  you  find  under  the  instructions 
which  the  court  gives  you  at  another  place,  beyond  a  reasonable 
doubt  that  the  defendant  was  an  aider  and  abettor  in  the 
crime  charged  against  the  said  A 

16a.  Jury  the  sole  judges  of  meaning  of  language  used.  The 
jury  are  instructed  that  you  are  the  final  arbiters  as  to  the 
meaning  of  the  language  claimed  to  have  been  used  in  the 
alleged  conversations  had  by  and  between  the  said  II.,  A.  and 
the  defendant.  You  will  decide  whether  the  language  claimed 
to  have  been  used  between  the  parties  in  these  alleged  conversa- 
tions bears  a  construction  that  it  was  intended  by  the  said  A.  or 
the  said  D.  as  a  solicitation  of  a  bribe  to  influence  the  said  A.  in 
his  official  action,  or  whether  the  language  used  by  the  said  A.  and 
the  said  D.  was  in  respect  to  the  receipt  of  the  money  as  claimed 
by  the  state,  intended  by  the  said  A.  and  the  said  D.  to  be  a 
solicitation  of  or  an  acceptance  of  a  bribe  to  influence  the  said 
A.  in  his  official  action  as  a  member  of  the  legislature,  or  of  any 
committee  thereof,  or  to  influence  his  action,  vote,  opinion,  or 
judgment  as  such  member,  or  to  influence  his  action  as  such 
member  in  securing  favorable  action  on  the  part  of  other  mem- 
bers of  the  legislature  or  members  of  a  committee  thereof.  What 
is  meant  by  the  language  is  a  question  for  your  solution.    Apply 


1274  INSTRUCTIONS  TO  JURY. 

your  intelligence  and  common  sense  in  deciding  it  in  the  light 
of  all  the  facts  and  circumstances  disclosed  by  the  evidence  and 
the  law  given  you  by  the  court  in  these  instructions. 

If  the  jury  are  satisfied  beyond  a  reasonable  doubt  that  A. 
either  solicited  or  accepted  money  with  intent  and  purpose  to 
influence  his  official  action,  you  will  then  proceed  to  determine 
whether  defendant  was  an  aider  and  abettor  in  either  or  both 
of  said  crimes. 

16b.  Law  as  to  aider  and  abettor.  The  court  will  now  instruct 
the  jury  concerning  the  law  as  to  an  aider  and  abettor  to  crime. 

The  statute,  section  12380,  provides: 

"Whoever  aids,  abets,  or  procures  another  to  commit  an 
offense  may  be  prosecuted  and  punished  as  if  he  were  the 
principal  offender. ' ' 

That  is,  if  A.  either  solicited  or  accepted  a  bribe,  or  both,  and 
D.  aided  and  abetted  him  in  the  acts,  either  or  both  of  them,  or 
procured  A.  to  commit  the  same,  he  is  guilty  in  the  same  manner 
as  A.  is,  if  you  find  that  the  latter  is  guilty  as  charged. 

A  person  may  in  law  be  guilty  of  aiding  and  abetting  another 
in  the  commission  of  a  crime  or  crimes  charged  by  an  indictment, 
either  by  a  plan  or  conspiracy  previously  formed  for  that  pur- 
pose, or  by  joint  participation  by  overt  acts  done  or  committed 
by  the  parties. 

17.  Conspiracy  betiveen  defendants  and  others  to  obtain 
money.  If  the  jury  believe  from  the  evidence  that  A.,  C,  H. 
and  others  as  members  of  the  committee  of  the  Senate  on 
insurance,  or  as  members  of  the  legislature  had  formulated  a 
plan  or  conspiracy  to  obtain  money  from  persons  interested  in 
bills  introduced  in  the  Senate  and  referred  to  said  committee  to 
influence  them  as  such  members  of  such  committees,  or  as 
members  of  the  legislature  and  that  said  persons  had  associated 
with  them  defendant  to  act  with  them,  and  on  their  behalf,  in 
furtherance  of  such  plan  or  conspiracy,  then  the  court  charges 
the  jury  that  the  acts  or  declarations  of  each  and  all  of  such 
persons  done  and  made  in  pursuance  of  such  conspiracy,  if  you 
find  there  was  one,  are  to  be  considered  as  the  acts  of  each  and 
all  of  said  persons  in  pursuance  of  such  conspiracy. 


BRIBERY.  1275 

If  the  jury  are  satisfied  that  such  a  conspiracy  was  formed  by 
said  persons,  and  that  the  acts  and  declarations  of  each  or  all 
of  said  persons  as  shown  by  the  evidence  in  this  case,  were  done, 
and  made,  in  furtherance  of  such  conspiracy,  then  such  acts  and 
declarations  done  and  made  by  such  persons  may  be  considered 
by  you  in  determining  the  guilt  or  innocence  of  A.  and  D.  of  the 
crime  or  crimes  charged  against  them  in  the  indictment  in  this 
case,  because  what  one  of  them  may  have  said  in  pursuance  of 
such  a  conspiracy  is  binding  on  each  and  all  of  the  others.  And 
if  the  jury  find  from  the  evidence  that  D.  aided  and  abetted  A. 
in  the  commission  of  the  crime  or  crimes  charged  against  him  in 
the  indictment  against  him,  in  furtherance  of  such  conspiracy, 
then  your  verdict  should  be  one  of  guilty  against  the  defendant. 

If,  on  the  other  hand,  the  jury  should  find  that  the  parties 
named  had  not  formed  a  plan  or  entered  into  a  conspiracy  such 
as  the  court  has  just  mentioned  and  explained,  your  attention 
will  next  be  directed  to  another  claim  made  by  the  state  in  this 
case. 

18.  Entrapment  into  crime — Status  of  those  participating 
therein.  In  determining  the  guilt  or  innocence  of  A.  of  the 
crime  of  solicitation  or  acceptance  of  money  to  influence  his 
official  action,  vote,  opinion  or  judgment,  and  of  defendant,  D., 
as  an  aider  and  abettor  of  either  or  both  of  said  crimes,  the  court 
will  now  charge  you  as  to  the  law  applicable  to  the  part  taken 
in  the  transaction  involved  in  the  case  by  the  witnesses  who 
have  testified  on  behalf  of  the  state,  who  have  acted  in  the 
capacity  of  detectives  in  the  investigation  of  alleged  bribery 
on  the  part  of  members  of  the  Ohio  Legislature. 

Any  person  or  persons  who  have  reasonable  grounds  of  belief 
or  suspicion  that  members  of  the  legislature  have  been  engaged, 
or  are  engaged  in  the  criminal  practice  of  soliciting  and  accept- 
ing bribes  to  influence  official  action,  have  the  right  to  adopt 
means  and  methods  to  detect  persons  suspected  of  being  engaged 
in  such  criminal  practices,  and  in  pursuance  of  that  purpose  they 
may  secure  the  services  of  persons  as  detectives  in  order  to  detect 
persons  believed  to  be  guilty  of  such  practices. 


1276  INSTRUCTIONS  TO  JURY. 

The  law  is,  gentlemen,  that  the  duty  of  a  legislator  can  not  be 
considered  obligatory  primarily  for  individual  or  personal 
benefit,  but  is  solely  and  entirely  for  the  benefit  of  the  State 
and  the  whole  people  of  the  State. 

In  considering  the  question  of  public  policy,  there  is,  gentle- 
men, in  law  a  clear  distinction  between  measures  used  to  entrap 
a  person  into  a  crime  in  order  to  aid  in  the  detection  of  some 
corrupt  private  purpose,  and  artifice  used  to  detect  persons 
suspected  of  being  engaged  in  the  solicitation  and  acceptance  of 
bribes  by  public  officers  which  vitally  affect  the  public  welfare. 

It  is  the  law  that  no  person,  or  class  of  persons,  nor  can  any 
public  official  be  held  criminally  responsible  for  any  act  which 
they  may  do  by  way  of  entrapment  of  persons  who  are  public 
officials  believed  and  suspected  of  being  engaged  in  the  criminal 
practice  of  soliciting  and  acceptance  of  money  to  influence 
official  action. 

A  prosecuting  attorney  whose  attention  has  been  called  to 
such  alleged  criminal  practices  is  not  acting  outside  the  pale 
of  the  law  in  rendering  assistance  in  the  discovery  of  such 
alleged  criminal  practices. 

So  the  court  charges  the  jury  that  if  it  appears  from  the 
evidence  in  this  case  that  there  was  a  belief  and  suspicion  on 
the  part  of  persons  engaged  in  the  investigation  of  the  members 
of  the  legislature  concerning  the  alleged  criminal  practices  above 
mentioned,  and  that  the  defendant,  who  was  sergeant-at-arms 
of  the  Senate,  upon  whom  certain  duties  were  imposed  by  law, 
entered  into  a  plan  or  conspiracy  with  the  detectives,  who  have 
testified  in  this  case,  to  have  members  of  the  Legislature  of  Ohio 
solicit  and  accept  bribes  to  influence  their  official  action  as  such 
members,  and  you  find  from  the  evidence  that  the  defendant, 
D.,  was  lured  into  acts  by  detectives  who  proposed  to  him  a 
scheme  with  reference  to  the  senate  bill,  to  have  such  members 
solicit  or  accept  money  to  influence  their  official  action,  which 
they,  the  detectives,  had  no  intention  to  carry  out,  that  fact  can 
not  be  urged  as  a  defense  by  the  defendant  in  this  case. 

19.  Defendant  may  he  guilty,  though  entrapped.  If  the  de- 
fendant had  no  knowledge  of  the  deception  by  the  detectives, 


BRIBERY.  1277 

but  entered  into  the  scheme  proposed  by  them,  believing  it  to  be  a 
genuine  plan  or  scheme,  and  if  the  defendant  did  any  act  or 
acts  in  furtherance  of  such  plan  or  conspiracy,  and  aided  and 
abetted  A.  in  the  solicitation  and  acceptance  of  money  from  EL, 
to  influence  his,  A.  's,  official  action,  and  that  said  A.  did  solicit 
or  accept  said  money  to  influence  his  official  action,  then  the 
fact,  if  it  is  a  fact,  that  both  D.  and  A.  were  lured  into  the  act 
will  not  excuse  them  from  responsibility  or  liability  under  the 
law  for  their  act  of  soliciting  or  acceptance  of  bribes,  or  of  aiding 
and  abetting  the  same. 

19a.  Detectives  not  aiders  and  abettors.  If  the  jury  believe 
that  the  persons  making  the  investigation  had  reason  to  believe 
or  suspicion  that  the  defendant  and  the  members  of  the  legisla- 
ture were  engaged  in  the  criminal  practices  mentioned,  and  that 
H.,  S.,  B.  and  B.  entered  into  a  combination  with  the  defendant, 
D.,  who  was  an  officer  of  the  legislature,  to  entrap  members  of 
the  legislature,  to  aid  the  investigation  and  to  detect  persons 
suspected  of  being  engaged  in  criminal  conduct  or  practice,  and 
they  continued  to  act  in  such  capacity  in  good  faith  until  the 
persons  suspected  had  been  arrested,  the  detectives  are  not 
aiders  or  abettors,  and  the  testimony  of  the  detectives  is  not  to 
be  considered  as  the  testimony  of  co-conspirators,  as  to  which 
there  are  special  rules  which  govern  the  jury  in  the  consideration 
of  the  testimony. 

If  you  find  that  the  detectives  and  the  defendant  did  enter 
into  the  plan  just  mentioned,  and  that  defendant,  D.,  believing 
the  transaction  to  be  real  and  genuine,  did  any  act,  delivered 
any  message  or  had  any  communication  with  A.  which  in  any 
wise  contributed  or  aided  or  abetted  said  A.  to  solicit  or  accept 
money,  and  that  A.  did  solicit  or  did  accept  money,  and  that 
the  defendant  did  aid  and  abet  the  solicitation  or  acceptance  of 
money  to  influence  his  official  action,  then  the  jury  would  be 
justified  in  finding  that  the  defendant,  D.,  was  actuated  by  a 
criminal  intent  to  aid  said  A.  in  the  solicitation  or  acceptance 
of  money  and  to  influence  his  official  action  as  a  member  of  the 
general  assembly. 


1278  INSTRUCTIONS  TO  JURY. 

20.  Immunity  of  detectives — Entrapping.  Under  the  law  as 
it  is  given  to  you  by  the  court  the  jury  is  instructed  that  there 
is  no  question  involved  in  this  case  concerning  the  immunity 
of  any  witness  who  has  testified  in  this  case  provided  the  jury 
find,  as  the  court  has  instructed  you,  that  those  who  were 
making  investigations  in  legislative  criminal  practices  therein 
believed  or  suspicioned  that  there  was  being  practiced  certain 
criminal  practices  by  the  members.  If  the  persons  making 
such  investigations,  acting  upon  such  belief  and  suspicion,  hon- 
estly pursued  the  course  shown  by  the  evidence  for  the  purpose 
of  detecting  those  guilty  of  such  criminal  practices,  and  if  they 
did  cause  them  to  commit  the  crime  of  soliciting  and  accepting 
bribes,  they  are  not  in  such  case  guilty  of  the  commission  of  any 
crime,  and  they  need  no  immunity. 

21.  Final  instruction  to  jury  as  to  their  duty  and  verdict. 
Now,  gentlemen,  the  court  has  given  you  the  rules  of  law  appli- 
cable to  the  evidence  in  this  case.  You  have  taken  an  oath  to 
follow  these  instructions,  and  in  order  to  know  what  the  law  is 
and  to  intelligently  apply  the  law  to  facts  which  you  find  you 
should,  if  you  desire,  read  these  instructions  in  your  jury  room. 

It  is  your  duty  to  uphold  the  majesty  of  the  law  by  applying 
it  to  the  evidence  in  this  case,  without  fear  or  favor. 

Banish  all  sentiment,  feeling,  sympathy  or  prejudice,  or  all 
suggestions  made  in  argument  to  arouse  your  sympathies  or 
prejudices,  from  your  minds,  and  be  true  to  your  oath  and  do 
not  disregard  the  law  as  given  you  by  the  court. 

The  jury  have  nothing  to  do  with  mercy;  the  courts,  pardon 
boards  and  the  governor  are  the  only  persons  who  are  authorized 
by  law  to  temper  justice  with  mercy,  and  the  legislature  has 
made  what  it  deems  proper  provision  in  this  matter. 

The  jury  deals  only  with  the  facts  in  the  light  of  the  law 
given  you  by  the  court;  that  and  nothing  more;  that  and  noth- 
ing less. 

Now,  gentlemen,  if  your  honest  and  deliberate  judgment  leads 
you  to  believe  that  the  defendant  is  guilty  of  aiding  and  abetting 
A.  of  either  in  soliciting  or  accepting  a  bribe,  let  your  verdict 
of  guilty  be  rendered  accordingly. 


BRIBERY.  1279 

If  you  have  a  reasonable  doubt  of  the  guilt  of  the  defendant, 
let  your  verdict  of  not  guilty  be  rendered,  accordingly.1 

i  State  v.  Diegle.  Franklin  County  Common  Pleas,  Kinkead,  J.  As  to 
entrapment,  see  State  v.  Diegle,  11  N.  P.  (X.S. )  593,  21  L.  D.  557; 
charge  affirmed,  State  v.  Diegle,  14  C.  C.  (N.S.)  289,  33  C.  D.  82, 
86  O.  S.  310. 

Sec.  1582.     Solicitation  of  a  bribe. 

1.  Statute  and  essentials  of  crime. 

2.  Solicitation — What  constitutes. 

3.  Same — Intent. 

4.  Jury  to  determine  meaning  of  language  used. 

5.  Intent  and  motive — Consideration  of  other  alleged  solici- 

tations. 

6.  Declarations  of  parties — Received  with  caution. 

1.  Statute  and  essentials  of  crime.  The  court  will  now  in- 
struct the  jury  concerning  the  crime  of  solicitation  of  a  bribe, 
and  instruct  you  concerning  your  duties  in  the  matter. 

That  part  of  the  General  Code,  sec.  12,823,  of  this  state, 
making  the  act  charged  in  the  indictment  a  crime,  reads  as 
follows : 

"Whoever,  being  a  member  of  the  General  Assembly,  either 
before  or  after  his  election,  qualification,  appointment  or  em- 
ployment, solicits  *  *  *  any  valuable  or  beneficial  thing  to 
influence  him  with  respect  to  his  official  duty,  or  to  influence 
his  action,  vote,  opinion  or  judgment,  in  a  matter  pending,  or 
that  might  legally  come  before  him,"  is  guilty  of  the  crime  of 
solicitation  of  a  bribe. 

Before  the  jury  can  find  the  defendant  guilty  it  must  be  sat- 
isfied beyond  a  reasonable  doubt  of  the  following  essential  facts: 
1.  That  defendant  solicited  a  valuable  thing  of  E.  2.  That  such 
solicitation  was  made  somewhere  in  Franklin  County,  Ohio. 
3.  That  such  solicitation  was  corruptly  made.  4.  That  it  was 
made  by  defendant  to  influence  him  with  respect  to  bis  official 
duty.  5.  Or  to  influence  his  action,  vote,  opinion  or  judgment. 
6.    Or  to  influence  some  of  his  associate  members  of  the  General 


1280  !>  INSTRUCTIONS  TO   JURY. 

Assembly  in  the  performance  of  his  official  duty.  7.  In  a  mat- 
ter pending  before  him.  8.  Or  that  might  legally  come  before 
him. 

To  make  out  the  charge  in  the  indictment,  the  State  is  not 
obliged  to  prove  that  any  money  was  paid,  accepted  or  received 
by  the  defendant. 

2.  Solicitation — What  constitutes.  To  solicit  any  valuable 
thing  by  a  member  of  the  General  Assembly  to  influence  him 
with  respect  to  his  official  duty,  imports  an  initial,  active  and 
wrongful  effort  by  such  person.  The  charge  of  solicitation  of 
any  valuable  thing  to  influence  the  defendant  in  respect  to  his 
official  dut}'  as  a  member  of  the  general  assembly,  or  to  influence 
his  action,  vote,  opinion  or  judgment,  as  contemplated  by  the 
statute  involves  the  idea  of  a  mental  attitude  on  the  part  of  the 
defendant  that  he  might  be  influenced  in  his  official  capacity 
by  the  acceptance  of  some  valuable  thing ;  or  that  he  may,  could 
or  would  be  so  influenced. 

Before  the  jury  can  find  a  verdict  of  guilty  in  this  case,  it 
must  find  from  the  evidence  that  the  defendant  used  language 
in  the  conversation  alleged  to  have  been  had  with  E.  from  which 
you  may  find,  considering  all  the  evidence  in  the  case,  by  which 
the  defendant  intended  to  solicit  money  to  influence  him  in  his 
official  capacity  as  a  member  of  the  General  Assembly  by  the 
receipt  of  some  valuable  thing  from  or  through  E.  It  must  be 
found  by  you  that  the  language  alleged  to  have  been  used  by 
the  defendant  disclosed  a  purpose  and  intent  to  secure  some 
valuable  thing  that  he  might  be  influenced  thereby.  It  need  not 
be  shown  that  the  defendant  would  be  influenced  in  a  particular 
way ;  the  essential  is,  that  whatever  you  find  the  defendant  to 
have  stated  to  E.,  it  should  show  that  he  solicited  or  requested 
the  payment  of  money  to  influence  him  in  his  official  duty  in 
some  way  concerning  the  bill  described  in  the  indictment.  To 
make  out  the  charge  in  the  indictment  it  is  not  essential  that 
the  State  show  that  defendant  wanted  the  money  for  his  own 
use,  or  that  he  intended  to  use  it  for  his  own  purposes,  but  the 
jury  is  instructed  that  the  forming  and  expressing  of  an  opinion 


BRIBERY.  1281 

or  judgment  in  favor  of  the  bill  in  question,  or  the  voting  for 
the  bill,  were  not  all  the  acts  that  the  defendant,  as  a  member 
of  the  house  of  representatives,  could  officially  do,  in  relation 
to  it.  As  a  member  of  the  legislature  it  was  competent  for  the 
defendant  to  ask,  to  induce  other  members  to  vote  for  the  bill, 
or  to  ask  other  members  of  the  committee  in  whose  hands  it 
was  to  vote  to  put  it  on  its  passage,  and  to  collect  facts  and 
reasons  for  the  passage  of  the  bill.  This  would  constitute  official 
action  and  be  within  official  duty.  As  a  member  of  the  legis- 
lature the  defendant  had  no  right  or  authority,  under  the 
bribery  law,  or  any  other  law  appertaining  to  his  official  posi- 
tion, to  solicit  or  ask  from  anyone,  or  to  invite  anyone  to  give 
or  pay  him  any  money,  either  for  himself,  or  for  any  other 
member  of  the  legislature,  in  consideration  for  the  exertion 
by  him  of  any  of  the  official  actions  mentioned  in  the  statute 
quoted  to  you.  The  influence  of  the  defendant  as  a  member  of 
the  general  assembly  over  the  official  actions  of  his  colleagues 
is  itself  a  part  of  his  own  official  action  and  duty.  (73  Minn. 
150.) 

Whatever  he  did,  or  was  intending  to  do,  on  these  lines  and 
in  respect  to  the  bill  mentioned  in  the  indictment,  he  was  bound 
to  do  as  the  representative  of  the  public,  and  he  had  no  right 
to  be  influenced  by  any  valuable  or  beneficial  thing,  except  his 
salary,  which  was  provided  for  by  law.  That  was  his  position. 
That  was  his  obligation. 

It  is  not  incumbent  upon  the  state,  in  making  out  its  case, 
that  it  shall  show  that  the  solicitation  of  money,  if  any  was 
made,  was  to  be  the  only  consideration  that  was  to  influence 
the  defendant  in  respect  to  his  official  duty,  or  his  action,  vote, 
opinion  or  judgment,  relative  to  the  bill.  He  may  have  been 
influenced  by  his  own  convictions  concerning  the  bill  to  support 
it.  The  law  does  not  require  the  state  to  prove  that  the  solici- 
tation, request  or  invitation  for  the  money  was  to  he  the  sole 
inducement  to  any  action  that  defendant  might  lake,  or  any 
vote  that  he  might  cast,  or  any  opinion  or  judgment  that  he 
might  form  or  express. 


1282  INSTRUCTIONS  TO  JURY. 

3.  Same — Intent.  It  is  essential  that  it  shall  be  made  to  ap- 
pear by  the  evidence  that  at  the  time  of  the  alleged  solicitation 
of  money,  or  in  some  other  way,  that  the  defendant  made  the 
solicitation  with  the  intent  and  purpose  of  influencing  his  official 
action  as  a  member  of  the  legislature,  either  in  his  vote,  opinion 
or  judgment,  or  with  the  intent  and  purpose  of  enabling  the 
defendant  to  exert  official  action  in  influencing  other  members 
of  the  legislature  in  their  official  actions  in  respect  to  the  judicial 
bill. 

4.  Jury  to  determine  meaning  of  language  used.  The  court 
instructs  the  jury  that  it  is  the  final  arbiter  of  the  meaning  of 
the  language  claimed  to  have  been  used  by  the  defendant  at  the 
time  of  the  alleged  solicitation  of  a  bribe ;  it  will  determine 
whether  the  language  bears  a  construction  that  it  was  intended 
by  the  defendant  as  a  solicitation  of  a  bribe  to  influence  him 
in  his  official  action,  as  a  member  of  the  legislature,  or  of  any 
committee  thereof,  or  to  influence  his  action,  vote,  opinion  or 
judgment  as  such  member,  or  to  influence  his  action  as  such 
member  in  securing  favorable  action  on  the  part  of  other  mem- 
bers of  the  legislature  or  members  of  a  committee  thereof. 
What  is  meant  by  the  language  is  a  question  for  your  solution. 
Apply  your  intelligence  and  common  sense  in  deciding  it  in  the 
light  of  all  of  the  facts  and  circumstances  by  the  evidence  and 
the  law  given  you  by  the  court  in  these  instructions. 

5.  Intent  and  motive — Consideration  of  other  alleged  solici- 
tations. In  determining  the  intent  of  the  defendant,  the  jury 
may  consider  the  evidence  as  to  the  conversations  between  de- 
fendant and  E.  when  the  solicitation  is  alleged  to  have  been 
made,  you  may  consider  the  testimony  as  to  other  alleged  solici- 
tation of  bribes  by  the  defendant,  if  any  you  find  from  the 
evidence  to  have  been  made.  The  court  instructs  and  cautions 
the  jury  that  it  may  only  consider  the  evidence  touching  the 
alleged  solicitation  of  money  at  other  times  than  charged  in 
the  indictment,  for  the  sole  purpose  of  enabling  you  to  deter- 
mine the  intent  of  the  defendant  at  the  time  at  which  it  is 
claimed  he  solicited  a  bribe  of  E. 


BRIBERY.  1283 

6.  Declarations  of  parties,  received  with  caution.  The  jury 
is  instructed  that  declarations  and  statements  of  persons  should 
always  be  received  by  the  triers  of  a  case  with  care  and  caution, 
for  the  reason  that  the  party  making  them  may  not  have  clearly 
expressed  his  meaning,  or  the  witnesses  who  testify  as  to  them 
may  have  misunderstood  him,  and  it  may  be  that  the  witnesses, 
by  unintentionally  altering  a  few  of  the  expressions  really  used, 
give  effect  to  the  statement  completely  at  variance  with  what 
the  party  did  actually  say.  But  if  the  jury  is  satisfied  that  the 
declarations  and  statements  have  been  made  and  correctly  given 
in  evidence,  they  may  in  the  opinion  of  the  jury  afford  strong 
and  convincing  evidence  and  proof,  for  the  reason  that  parties 
are  not  supposed  to  make  declarations  against  themselves  and 
their  interest.  It  is  the  province  of  the  jury  to  weigh  such 
evidence  and  to  give  it  such  consideration  to  which  it  is  entitled 
in  the  opinion  of  the  jury  in  view  of  all  the  evidence  in  the  case. 

7.  Admonitions  to  jury.  Gentlemen  of  the  jury,  it  is  the 
solemn  duty  of  the  court,  before  this  case  is  finally  submitted 
to  you,  to  urge  that  you  shall  disregard  all  appeals  made  to  you 
by  counsel  as  to  matters  which  are  outside  the  record  in  this 
case.  The  court  instructs  the  jury  that  you  must  pay  no  atten- 
tion to  these  appeals. 

It  would  be  strange  if,  in  a  case  like  this,  the  anxiety  and 
zeal  of  the  attorneys  should  not  present  to  your  minds  topics 
which  are  outside  the  evidence  and  which  have  no  pertinence 
to  the  issue  on  trial  and  no  appropriateness  in  the  consideration 
of  upright,  law-respecting  and  oath-respecting  jurors.  Such 
incidents  are  so  usual  in  criminal  trials  that  it  almost  becomes 
embarrassing  for  the  court  to  undertake  to  correct  them,  and 
yet  they  are  gravely  injurious  to  the  cause  of  law  and  justice, 
and  jurors  should  leave  no  stain  on  their  oath  by  being  in  the 
slightest  degree  influenced  by  them.  T  allude  to  the  appeals  to 
the  sympathy  and  commiseration  of  the  jury,  reference  to  the 
penalty  of  the  law  with  which  the  jury  have  no  concern,  and 
would  violate  your  duty  if  you  even  considered  them. 

The  attorneys  engaged  in  the  trial  of  this  ease  are  officers  of 
this  court,  and  it  is  their  duty  to  assist  the  court  and  jury  in 


1284  INSTRUCTIONS  TO  JURY. 

the  administration  of  justice.  They  may  call  your  attention  to 
the  evidence,  they  may  present  it  in  such  way  as  to  best  suit 
their  respective  sides,  and  it  is  your  privilege  and  duty  to  listen 
to  and  consider  their  reasons  and  argument  for  whatever  assist- 
ance it  may  be  to  you  in  the  consideration  of  the  evidence  in 
this  case.  But,  gentlemen,  you  must  consider  only  the  evidence 
which  the  court  has  admitted,  and  the  law  as  given  you  in 
these  instructions,  and  allow  no  reference  to  outside  matters  to 
influence  your  verdict  in  the  slightest  degree. 

Pay  no  attention  to  what  the  public  press  may  have  said  about 
this  case,  if  anything,  nor  to  any  public  interest  that  there  may 
be  in  this  case.  When  you  have  acted  conscientiously,  honestly 
and  solely  upon  the  evidence  and  the  law,  you  need  have  no 
concern  as  to  what  anyone  may  say  or  think  about  your  verdict, 
whether  it  be  one  of  guilty  or  of  not  guilty.  In  a  case  like  this 
you  have  a  stern  duty  to  perform,  and  in  its  performance  you 
have  no  right  to  be  influenced  by  appeals  to  the  tender  emotions 
of  your  human  nature,  or  by  sympathy  for  anybody,  or  by  ref- 
erence to  any  outside  matters. 

Certainty,  regularity  and  firmness  in  the  administration  of 
the  law  by  courts  and  jurors  are  of  the  highest  importance. 

I  say  this,  not  to  impress  you  with  anything  save  this,  and 
that  is  the  solemn  and  exalted  public  duty  for  which  you  have 
been  selected  and  designated  by  the  machinery  of  the  law.  The 
duty  is  as  much  due  to  the  defendant  as  to  the  public.  You 
must  answer  the  question  whether  the  defendant  is  innocent  or 
guilty  upon  the  evidence  as  it  was  given  here  from  the  witness 
chair,  and  according  to  the  law  as  it  is  given  you  in  this  charge. 
You  simply  pronounce  upon  the  question  whether  defendant  is 
innocent  or  guilty.  If  he  is  guilty,  say  so ;  he  is  responsible  for 
it,  and  not  you.  If  he  is  innocent,  then  your  verdict  should  be 
a  shield  to  him  at  this  time.1 
i  State  v.  Nye,   Franklin   Co.   Com.   Pleas,  Kinkead,  J. 

Sec.  1583.     Reputation  of  accusing  witnesses. 

Testimony   has  been   introduced   touching   the   reputation   of 
E.  A.  C.  and  S.  H.  for  truth  and  veracity. 


BRIBERY.  1285 

A  person's  reputation  for  truth  is  established  by  what  his 
neighbors  and  the  persons  with  whom  he  generally  associates 
in  a  community  generally  say  of  him  in  this  regard.  It*  they 
generally  say  he  is  untruthful,  that  makes  his  general  reputation 
for  truth  bad.  On  the  other  hand,  if  a  man's  neighbors  and 
associates  in  a  community  sajr  nothing  whatever  about  him  as 
to  his  truthfulness,  that  fact  of  itself  is  evidence  that  his  general 
reputation  for  truth  is  good.1 

The  reputation  of  a  person  for  truth  must  appear  to  be  gen- 
eral in  a  community  where  he  lives,  or  in  a  community  where 
he  may  temporarily  reside  for  a  sufficient  length  of  time  to 
acquire  a  general  reputation.  The  general  reputation  must 
appear  from  what  people  in  general  say  of  him  in  the  com- 
munity, and  should  not  be  limited  to  a  particular  class  of 
persons,  but  depends  upon  what  is  generally  said  of  him,  or  by 
the  fact  that  people  generally  do  not  discredit  him. 

Whether  or  not  the  general  reputation  of  these  witnesses  has 
been  successfully  impeached  is  for  the  jury  to  determine.  You 
will  consider  all  the  testimony  offered  on  this  point,  that  pro- 
duced by  the  defense  to  impeach  and  that  produced  by  the  state 
to  support  the  witnesses.  The  credibility  of  all  these  witnesses 
and  the  weight  to  be  attached  to  their  testimony  is  within  the 
exclusive  province  of  the  jury.  You  may  consider  the  standing 
of  the  witnesses  offered,  their  opportunity  to  know  the  people 
with  whom  the  witnesses  sought  to  be  impeached  generally 
mingle  in  the  community  where  they  live ;  whether  the  testimony 
shows  that  the  people  with  whom  the  witnesses  associated  gen- 
erally discredit  the  witnesses  for  truth,  or  whether  only  a  few 
of  such  persons  discredit  them ;  or  whether  it  appears  that  the 
reputation  of  such  witnesses  for  truth  was  not  generally  ques- 
tioned. 

The  jury  may  also  consider  the  relation  which  the  impeaching 
witnesses  sustain  to  the  prosecution  or  the  defense,  or  to  the 
defendant,  or  to  the  witnesses  sought  to  be  impeached. 

The  jury  may  consider  also  the  interest  which  the  impeaching 
witnesses  may  have  in  the  defense  of  this  case  or  other  alleged 


1286  INSTRUCTIONS  TO  JURY. 

acts  of  solicitation  of  bribes  testified  to  in  this  case,  if  the  jury 
believe  any  witness  or  witnesses  have  such  interest. 

If  the  jury  should  be  of  the  opinion  that  the  general  reputation 
of  either  or  both  of  the  witnesses  mentioned  for  truth  and 
veracity  in  the  community  where  they  live  or  temporarily 
reside,  has  been  successfully  impeached,  then  you  may  in  your 
discretion  disregard  their  testimony  as  being  unworthy  of  belief, 
either  a  part  of  it  or  all  of  it,  as  your  judgment  demands.  But, 
notwithstanding  the  fact  that  you  may  believe  from  the  evidence 
that  the  general  reputation  of  such  witness  or  witnesses  for  truth 
has  been  successfully  impeached,  you  may  still  believe  their  tes- 
timony, a  part  or  all  of  it,  if  your  judgment  suggests  that  you 
should  give  credence  to  it.  In  determining  the  weight  to  be 
given  to  the  testimony  of  the  witnesses  sought  to  be  impeached, 
you  may  consider  whether  it  has  or  has  not  been  corroborated 
by  other  witnesses  or  facts  and  circumstances  appearing  in  the 
case. 

To  warrant  the  jury  in  coming  to  the  conclusion  that  the 
reputation  of  such  witness  or  witnesses  has  been  successfully 
impeached,  you  must  find  that  the  bad  reputation  is  general  in 
the  community  where  he  lives,  or  that  it  is  generally  bad  in  a 
community  where  he  has  temporarily  resided  for  a  sufficient 
length  of  time  to  have  acquired  a  general  reputation  for  truth ; 
that  is,  that  it  is  generally  so  reported  and  considered  to  be  bad 
in  the  community;  and  if  it  has  not  been  thus  impeached,  the 
jury  should  not  reject  it,  but  should  give  it  consideration  and 
weight,  applying  to  it  the  ordinary  tests  of  credibility. 

A  witness  may  be  impeached  by  showing  that  he  has  made 
other  and  different  statements  out  of  court  from  those  made 
before  you  on  the  trial,  as  to  any  material  matter.  And  if  the 
jury  believe  from  the  evidence  that  any  witness  has  made  state- 
ments at  another  time  and  place  at  variance  with  his  evidence 
in  this  case,  regarding  any  material  matter  testified  to  by  him, 
then  it  is  the  province  of  the  jury  to  determine  to  what  extent 
this  fact  tends  to  impeach,  either  his  memory  or  his  credibility, 
or  detracts  from  the  weight  to  be  given  his  testimony.     It  is 


BRIBERY.  1287 

entirely  a  question  for  the  jury  as  to  what  effect  it  will  have 
upon  you  here.  It  is  not  whether  the  statement  alleged  to  have 
been  made  outside  is  true,  but  whether  the  testimony  given  on 
trial  is  true.  In  determining  the  question  you  will  take  into 
consideration  all  of  the  facts  and  circumstances,  applying  the 
tests  in  determining  the  credibility  of  witnesses.  The  contra- 
diction must  be  as  to  a  material  matter,  and  its  materiality  is  to 
be  measured  by  you  by  the  charge  of  solicitation  of  a  bribe, 
contained  in  the  indictment.  The  question  of  fact  which  you 
are  to  determine  in  this  case  is  whether  the  defendant  corruptly 
solicited  a  bribe,  with  intent  to  influence  his  official  duty.2 

i  Sackett's    (Brickwood),  Instructions,  sec.  373,  2S  Ind.  206,  68  Ind.  238, 

132  Ind.  254. 
-  State   v.  Nye,   Franklin   Co.   Com.  Pleas,   Kinkead,  J. 

Sec.  1584.  Bribery  of  city  official — Form  of  complete  charge 
in  a  criminal  case — Embracing  preliminary 
questions. 

1.  Plea  of  not  guilty. 

2.  Presumption  of  innocence. 

3.  Reasonable  doubt. 

4.  Consideration  of  unanswered  questions. 

5.  Refusal  to  answer  incriminatory  questions. 

6.  Negative  testimony. 

7.  Credibility  of  witnesses. 

8.  Pleas  of  guilty  and  flight. 

9.  Testimony  of  accomplices  or  aiders  and  abettors. 

10.  Evidence  as  to  admissions. 

11.  Impeachment. 

12.  Testimony  of  an  accomplice  offered  immunity. 

13.  Specific  charges  in  indictment. 

14.  Law  as  to  bribery. 

15.  Intent. 

16.  Corpus  delicti — Must  be  proved. 

17.  Direct  and  circumstantial  evidence. 

18.  Extrajudicial  admission  must  be  corroborated. 


1288  INSTRUCTIONS  TO  JURY. 

19.  Claim  as  to  conspiracy. 

20.  The  law  as  to  conspiracy. 

The  indictment  in  this  ease  charges  the  defendant  with  the 
crime  of  bribery. 

1.  Plea  of  not  guilty.  The  defendant  has  entered  a  plea  of  not 
guilty  to  the  charge  made  against  him  by  the  indictment. 

This  plea  forms  the  issues  to  be  tried,  and  presents  the  issues 
of  fact  which  are  now  to  be  submitted  to  you  for  determination. 

The  burden  of  proving  the  defendant  guilty  of  the  charges 
made  against  him  is  upon  the  state,  which  must  be  established  by 
the  degree  of  proof  or  evidence,  which  is  required  by  law  in  crim- 
inal cases,  and  which  the  court  will  presently  explain  to  you. 

2.  Presumption  of  innocence.  The  law  arbitrarily  creates  a 
presumption  in  favor  of  every  one  charged  with  a  crime,  that 
he  is  presumed  to  be  innocent  until  he  is  proven  guilty  according 
to  law.  This  simply  means,  gentlemen,  that  when  you  enter 
upon  your  deliberations  in  the  consideration  of  the  charges  made 
against  the  defendant,  and  of  the  evidence  offered  by  the  state, 
and  by  the  defendant,  you  shall  proceed  upon  the  theory,  as 
well  as  upon  the  fact,  that  he  is  presumed  to  be  innocent.  The 
defendant  is  entitled  to  the  benefit  of  this  presumption  from  the 
time  you  begin  to  consider  the  evidence,  and  throughout  the 
consideration  of  the  case,  and  until,  after  weighing  the  testimony 
carefully  according  to  the  tests  prescribed  by  law  and  explained 
to  you  by  the  court,  you  have  reached  the  conclusion  that  this 
presumption  has  been  overcome.  That  you  may  fully  appre- 
ciate the  full  import  of  this  rule,  your  attention  will  be  further 
directed  to  its  beneficent  purposes.  It  is  the  purpose  of  the  law 
that  jurors,  in  approaching  the  consideration  of  charges  made 
by  an  indictment,  shall  have  their  minds  free  and  open,  and 
that  you  shall  not  be  prejudiced  or  influenced  in  the  slightest 
degree  by  the  fact  that  an  indictment  has  been  found  against  the 
defendant.  The  aim  and  purpose  of  this  rule  of  law  is,  that 
jurors  are  to  consider  and  be  guided  only  by  the  evidence  offered 
in  the  case.  And  the  court  places  the  injunction  upon  your 
consciences  that  neither  your  consciences  nor  your  oaths  shall 


BRIBERY.  1289 

be  tarnished  by  the  slightest,  departure  from  your  duty  as  the 
court  has  endeavored  to  explain  it  to  you.  If  in  your  deliber- 
ations you  should  reach  the  conclusion  that  the  evidence  has 
overcome  this  legal  presumption  of  innocence,  then  in  further 
considering  the  testimony,  with  a  view  to  determine  whether  the 
defendant  is  guilty  or  innocent  of  the  charges  made  by  the  in- 
dictment, you  must  be  guided  and  governed  by  another  humane 
provision  of  law  which  prescribes  that  in  criminal  procedure, 
the  degree  of  evidence  which  will  govern  and  control  jurors  is 
that  they  shall  be  satisfied  of  the  guilt  of  the  accused  beyond  a 
"reasonable  doubt,"  before  you  can  find  him  guilty,  and  if  not  so 
satisfied,  you  should  acquit  him.  It  is  not  incumbent  upon  one 
charged  with  a  crime,  in  order  to  prove  his  innocence,  that  he 
shall  satisfy  the  jury  of  the  existence  of  any  material  fact  which, 
if  true,  would  constitute  a  complete  defense.  It  is  sufficient  if 
the  evidence  merely  creates  in  the  minds  of  the  jurors  a  reason- 
able doubt  of  the  existence  or  truth  of  material  facts,  in  which 
case  the  defendant  is  entitled  to  be  acquitted. 

3.  Reasonable  doubt.  So  many  forms  and  definitions  have 
been  given  of  a  "reasonable  doubt"  that  it  would  almost  cause 
us  to  believe  that  there  was  some  mystery  about  the  term,  or 
difficulty  about  its  meaning.  What  we  want  is  a  practical,  plain 
and  sensible  explanation.  A  reasonable  doubt  is  an  honest, 
reasonable  uncertainty,  such  as  may  fairly  and  naturally  arise 
in  your  minds,  after  having  fairly,  carefully  and  conscientiously 
considered  all  the  evidence  introduced  upon  the  trial  of  this 
cause,  when  viewed  in  the  light  of  all  the  facts  and  circum- 
stances surrounding  the  same.  It  is  a  doubt  founded  upon  a  real, 
tangible,  substantial  basis.  It  is  such  a  doubt  as  would  cause 
a  reasonable,  prudent  and  considerate  person  to  pause  and  hesi- 
tate to  take  action  concerning  matters  affecting  his  own  material 
interests,  or  in  matters  pertaining  to  the  graver  and  more  impor- 
tant affairs  of  life,  or  in  transactions  like  the  one  involved  in 
this  ca.se.  A  doubt  is  not  reasonable  if  it  rests  upon  or  is  founded 
upon  a  mere  caprice,  fancy  or  conjecture;  it  is  unreasonable 
also  if  it  arises  in  the  mind  of  a  juror  by  reason  of  his  own  per- 


1290  INSTRUCTIONS  TO   JURY. 

sonal  feelings,  passion  or  sentiment.  A  juror  who  acts  upon 
such  a  doubt,  or  who  creates  a  doubt  in  his  own  mind  to  avoid 
a  disagreeable  duty,  violates  the  oath  which  he  takes.  If,  after 
a  careful  and  impartial  consideration  of  all  of  the  evidence  in 
the  case,  you  can  say  and  feel  that  you  have  an  abiding  con- 
viction of  the  guilt  of  the  defendant,  and  you  are  fully  satisfied 
beyond  a  reasonable  doubt  of  the  truth  of  the  charge,  then  you 
are  satisfied  beyond  a  reasonable  doubt.  If,  from  all  the  evidence 
in  the  case,  the  jury  have  a  reasonable  doubt  whether  the  de- 
fendant has  been  proven  guilty,  it  is  then  your  duty  to  find  the 
defendant  not  guilty. 

4.  Duty  of  jurors  to  deliberate  and  confer  with  each  other. 
The  law,  in  constituting  a  jury  of  twelve  men,  thus  contemplated 
that  each  and  every  one  of  you  shall  give  your  individual  con- 
sideration of  and  judgment  upon  the  evidence.  The  rules  of 
law  pertaining  both  to  the  essence  of  the  crime,  and  the  degree 
and  rules  of  evidence,  which  are  explained  to  you  in  these  in- 
structions, are  necessarily  binding  upon  the  individual  conscience 
and  judgment  of  the  members  of  the  jury.  It  is  the  duty  of  each 
juryman  while  you  are  deliberating  upon  your  verdict  to  confer 
with  your  fellows  and  give  careful  consideration  to  the  views 
which  your  fellow  jurors  may  have  to  present  upon  the  testi- 
mony in  the  case.  A  juror  should  not  turn  a  deaf  ear  to  the 
views  of  his  fellows,  and,  without  listening  to  their  reasons 
and  arguments,  obstinately  stand  upon  his  own  opinion  in  the 
matter,  regardless  of  what  may  be  said  by  the  other  jurymen. 
It  must  be  the  object  of  all  of  you  to  arrive  at  a  common  con- 
clusion, and  to  that  end  you  should  deliberate  together  with 
calmness  and  be  considerate  of  each  other's  views.1 

5.  Consideration  of  improper  unanswered  questions.  Some 
questions  have  been  asked  of  witnesses  which  were  not  permitted 
by  the  court  to  be  answered. 

The  fact  that  such  questions  have  been  asked,  though  not 
answered,  should  not  be  considered.  You  have  no  right  to  draw 
any  inferences  as  to  the  purpose  sought  to  be  established  by 
those  propounding  them,  and  you  will  not  be  justified  in  draw- 
ing any  inferences  therefrom. 


i  Davis  v.  State,  63  O.  S.  173,  174. 


BRIBERY.  1291 

6.  Refusal  to  answer  incriminatory  questions.  You  are  in- 
structed, gentlemen,  that  under  the  constitution  and  law  of 
Ohio,  a  witness  has  the  right  to  refuse  to  answer  questions  the 
answers  to  which  might  tend  to  criminate  him.  If  any  witness 
has  so  refused  to  answer  questions  propounded  to  him,  you 
have  no  right  to  draw  any  deductions  therefrom,  it  being  your 
duty  to  consider  only  the  evidence  given. 

7.  Negative  testimony.  It  is  the  duty  of  the  Court  to  instruct 
you  concerning  negative  testimony  as  distinguished  from  af- 
firmative testimony.  Negative  testimony  is  testimony  that  things 
were  not  done,  or  that  a  statement  was  not  made,  while  affirm- 
ative testimony  is  testimony  that  a  thing  was  done,  or  that  a 
statement  was  made.  It  is  a  rule  of  law  of  evidence  that  the 
affirmative  is  to  be  preferred  to  the  negative.  Where  under 
all  the  circumstances  it  appears  to  have  been  the  duty  of  one 
to  speak,  and  he  does  not  speak,  then  his  silence  or  failure  to 
speak  may  be  considered  together  with  all  the  other  evidence 
in  arriving  at  your  verdict.  But  on  the  other  hand  if,  from 
all  of  the  facts  and  circumstances  in  the  case,  you  should  be 
of  the  opinion  that  a  witness  or  party  was  under  no  obligation 
or  duty  to  speak,  and  he  did  not  speak,  his  failure  to  speak 
in  such  case,  should  not  be  taken  into  account  by  you  in  the 
consideration  of  the  evidence. 

8.  Credibility  of  witnesses.  The  credibility  of  each  and  all 
the  witnesses  who  have  testified  in  this  case  is  left  entirely 
to  the  jury.  The  weight  and  credit  to  be  given  to  the  testi- 
mony of  witnesses  is  committed  to  your  judgment.  In  deter- 
mining this  question,  you  may  consider  their  intelligence,  their 
manner  and  conduct  on  the  witness  stand,  whether  any  wit- 
ness showed  zeal  or  feeling  against  or  for  either  side;  whether 
there  was  any  reluctance  on  the  part  of  any  witness  in  tes- 
tifying; whether  a  witness  has  an  interest  in  the  conviction 
of  the  accused,  or  an  interest  in  his  own  liberty,  or  in  the 
liberty  of  any  other  person.  You  may  consider  the  relation 
that  each  witness  bears  to  the  case;  his  means  of  information; 
the  interest,  if  any,  he  may  have  in  the  result;  the  motives, 


1292  INSTRUCTIONS  TO  JURY. 

if  any,  that  might  lead  him  to  swear  falsely,  or  otherwise; 
whether  his  motives  for  relating  the  facts  testified  to  are  wholly 
to  bring  a  guilty  person  to  justice,  or  to  vent  his  wrath  upon 
an  innocent  person ;  whether  there  was  a  corrupt  motive  on 
his  part  to  testify  for  or  against  the  defendant;  or  whether 
his  sole  motive  was  to  tell  the  truth,  without  regard  to  con- 
sequences ;  whether  or  not  any  witness  was  in  a  situation  that 
might  tend  to  make  him  warp  his  evidence ;  or  whether  or 
not  he  was  so  situated  that  such  witness  or  witnesses  had  no 
reason  to  testify  falsely;  whether  or  not  they  were  induced 
to  become  a  witness  and  testify  in  the  case  by  any  promise 
or  hope  of  leniency  or  mitigation  of  punishment  in  case  they 
testified ;  or  whether  any  witness  was  induced  to  testify  through 
promise  or  hope  of  leniency  to  any  one  else  in  whom  they  are 
interested  by  relation  or  otherwise;  or  whether  no  such  influ- 
ences were  brought  to  bear  upon  any  witness.  If  you  find  from, 
the  evidence  that  any  one  of  the  witnesses  is  likely  to  be  seriously 
affected  by  reason  of  the  facts  and  circumstances  which  you 
may  find  to  be  connected  with  and  a  part  of  the  transaction 
involved  in  this  case,  if  you  reach  any  such  conclusion,  you 
may  consider  that  fact,  if  you  find  the  fact  to  be,  in  determin- 
ing the  weight  or  credit  of  any  witness.  You  may  consider 
the  probability  or  improbability  of  the  truth  of  the  statements 
made  by  any  witness.  You  are  not  obliged  to  believe  the  state- 
ments of  any  witness  merely  because  he  made  them;  and  you 
may,  if  your  judgement  dictates,  believe  part  and  disbelieve 
part  of  any  witness's  testimony.  These  and  many  other  matters 
might  be  called  to  your  attention  whereby  you  are  to  test  the 
evidence.  Weighing  the  testimony  by  these  and  other  tests  you 
may  have,  you  will  determine  the  effect  to  be  given  it,  and  you 
will  give  the  testimony  such  credit  as  it  is  entitled  to;  and 
if  you  determine  from  all  the  evidence  adduced  at  the  trial, 
under  the  charge  of  the  Court,  that  the  evidence  has  established, 
beyond  a  reasonable  doubt,  the  guilt  of  the  accused,  it  is  your 
duty  to  say  so  in  your  verdict.  But  if  the  evidence  has  not 
so  convinced  you,  your  duty  requires  you  to  find  the  defendant 
not  guilty. 


BRIBERY.  1293 

9.  Pleas  of  guilty  and  flight.  Questions  have  been  asked 
of  witnesses  concerning  indictments  preferred  against  them  and 
of  pleas  of  guilty  thereto  made  by  them,  and  of  flight  before 
such  indictments  were  found.  The  Court  permitted  these  ques- 
tions to  be  answered,  and  their  answers  submitted  to  you  to 
be  weighed  and  considered  by  you  in  determining  the  credi- 
bility of  such  witnesses.  The  Court  especially  charges  and 
cautions  you  that  you  are  to  consider  evidence  touching  the 
flight  of  any  witness  only  on  the  question  of  credibility,  and 
not  as  having  any  bearing  upon  the  commission  of  the  crime 
charged  against  the  defendant  excepting  as  the  testimony  of 
such  witness,  according  to  the  credit  which  you  may  attach  to 
it,  may  tend  to  prove  the  innocence  or  guilt  of  the  defendant. 

10.  Testimony  of  accomplices  or  aiders  and  abettors.  Hou> 
to  be  considered.  In  view  of  the  testimony  of  some  of  the 
witnesses  who  have  appeared  and  given  evidence  before  you, 
it  is  incumbent  upon  the  Court  to  instruct  you  in  reference 
to  your  duty  in  the  consideration  of  their  testimony.  If  you 
should  find,  as  charged  in  this  case,  that  there  was  a  conspir- 
acy to  defraud  the  City  of  Columbus,  or  to  obtain  the  corrupt 
action  of  the  members  of  the  Board  of  Public  Service  by  brib- 
ing them,  and  that  the  defendant  and  others  participated  in 
such  conspiracy,  and  if  any  of  the  persons,  whom  you  so  find 
to  be  members  of  said  conspiracy  and  who  are,  in  your  opinion, 
jointly  responsible  as  aiders  and  abettors  in  the  alleged  crime 
of  bribery,  claimed  to  have  been  committed  in  pursuance  of 
said  conspiracy  and  as  a  part  thereof,  have  testified  in  this 
trial,  then  you  are  instructed  that  you  will  be  governed  by  the 
following  injunctions  and  instructions,  which  the  Court  now 
gives  you. 

One  who  participates  in  the  commission  of  a  crime,  by  aid- 
ing and  abetting,  though  not  directly  participating  in  the  crime, 
is,  according  to  the  law,  an  aider  and  abettor.  Under  ancient, 
or  common  law,  such  person  was  considered  an  "accomplice," 
which  is  synonymous  with  an  aider  and  abettor,  except  that 
an  accomplice  meant  a  person  who,  not  only  aided  and  abetted 


]294  INSTRUCTIONS  TO  JURY. 

in  the  commission  of  a  crime  before  its  commission,  but  who 
committed  acts  in  connection  with  the  crime,  subsequent  to  its. 
commission.  The  term  accomplice,  as  thus  explained,  is  the 
term  which  I  will  use  in  these  instructions.  The  fact  that  a 
witness  was  an  accomplice,  or  an  aider  and  abettor,  if  that  is 
a  fact,  does  not  make  him  incompetent  as  a  witness ;  the  tur- 
pitude of  his  conduct  does  not  disqualify  him  as  a  witness. 
The  admission  of  an  accomplice  as  a  witness  is  said  to  be  jus- 
tified by  the  necessity  of  the  case,  but  with  the  wisdom  of  the 
practice  you  are  not  concerned.  The  degree  of  credit  which 
ought  to  be  given  to  the  testimony  of  a  witness  who  has  turned 
State's  evidence  is  a  matter  exclusively  within  your  province 
to  decide.  While  the  matter  of  credit  to  be  given  the  testimony 
of  an  aider  and  abettor,  or  an  accomplice,  is  within  the  sole 
province  of  the  jury  to  determine,  yet  the  law  makes  it  the  duty 
of  the  Court,  within  its  discretion,  to  advise  a  jury  not  to  con- 
vict one  charged  with  a  felony  upon  the  testimony  of  an  ac- 
complice alone,  and  without  corroboration.  If  you  should  en- 
tertain a  reasonable  doubt  as  to  whether  the  defendant  was 
a  party  to  such  a  common  scheme,  design  or  conspiracy,  of 
which  the  Court  has  spoken,  then  there  would  be  no  occasion 
for  a  consideration  of  the  rules  relating  to  the  testimony  of  an 
accomplice,  aider  or  abettor. 

In  obedience  to  this  discretionary  power  thus  vested  in  trial 
judges,  I  caution  you  to  consider  and  scrutinize  with  care  the 
testimony  of  any  person,  or  persons,  whom  you  are  satisfied 
from  all  the  evidence  were  participators  and  actors  in  the  al- 
leged conspiracy  to  defraud  the  city,  or  to  obtain  the  corrupt 
municipal  action  of  the  Columbus  Board  of  Public  Service, 
and  whom  you  are  also  satisfied  from  the  evidence,  acting 
under  these  instructions,  were  aiders  and  abettors,  or  accom- 
plices, in  the  crime  charged  here,  or  in  any  crime  charged  to 
have  been  committed  in  pursuance  of  the  alleged  conspiracy, 
if  you  should  find  any  such  crime  to  have  been  committed,  and 
that  the  defendant  was  a  party  thereto.  I  do  not  consider 
it  within  the  province  of  the  Court  to  name  any  witness  or  wit- 


BRIBERY.  1293 

nesses,  who  come  within  the  rule  of  evidence,  instructions  as 
to  which  the  Court  now  gives  you.  It  is  within  your  province 
to  observe  the  injunction  of  the  Court  now  given  you  in  respect 
to  the  testimony  of  any  witness  or  witnesses  whom  you  find 
come  within  the  rule  now  given  you. 

If  you  should  find  from  all  the  evidence  that  the  defendant,  and 
others  who  have  appeared  as  witnesses  in  this  case,  were  engaged 
in  a  common  design  and  conspiracy  to  either  defraud  the  city, 
or  to  corruptly  obtain  the  official  action  of  C,  member  of  the 
Board  of  Public  Service,  and  other  members  of  the  Board  of  Pub- 
lic Service  of ,  and  that  the  crime  charged  in  this  indict- 
ment, as  well  as  other  crimes  of  bribing  other  members  of  the  said 
Board  of  Public  Service,  were  committed  by  any  of  the  per- 
sons whom  you  find,  if  you  do  so  find,  were  engaged  in  the 
common  design  and  conspiracy  aforesaid,  then  you  are  in- 
structed to  apply  the  rule  which  the  Court  now  gives  you  in 
the  consideration  of  the  testimony  of  any  such  person  or  per- 
sons. While  I  deem  it  to  be  my  duty  to  caution  you  to  scru- 
tinize with  care  the  testimony  of  any  such  witness,  or  witnesses, 
as  come  within  the  foregoing  rules,  still  it  is  my  duty  at  the 
same  time  to  instruct  you  that  the  law  is,  that  you  may  find 
the  defendant  guilty  upon  the  testimony  of  any  person  or  per- 
sons whom  you  may  find  to  be  an  aider  and  abettor,  or  aid- 
ers and  abettors,  which  you  may  find  to  be  corrobrated  as  to 
one  or  more  material  facts,  notwithstanding  his  or  her  infamy 
and  complicity  in  the  crime  or  crimes  alleged  to  have  been 
committed  in  pursuance  and  as  part  of  the  conspiracy  claimed 
to  have  been  formed  in  the  transaction  under  investigation 
in  this  case.  And,  acting  within  the  power  given  me  by  the 
law  of  this  state,  I  advise  you  not  to  convict  the  defendant  upon 
the  testimony  of  any  witness  or  witnesses,  whom  you  find  to 
have  been  an  accomplice,  or  an  aider  and  abettor,  unless  you 
find  that  it  is  corroborated.  You  are  instructed  not  to  give 
credit  to  the  testimony  of  such  witness  or  witnesses  unless  it 
is  corroborated  by  other  evidence,  either  undisputed  or  well 
established  facts  or  circumstances,  or  by  the  testimony  of  truth- 


1296  INSTRUCTIONS  TO  JURY. 

ful  witnesses.  The  corroborative  evidence  must  tend  to  con- 
firm the  testimony  of  an  accomplice  upon  a  point  material  to 
the  issue,  in  the  sense  that  it  tends  to  prove  the  guilt  of  the 
defendant. 

11.  Evidence  as  to  admissions.  You  are  instructed,  that  the 
evidence  of  certain  witnesses  as  to  oral  admissions  or  state- 
ments of  defendant,  alleged  to  have  been  made  to  them,  should 
be  viewed  wTith  scrutiny,  and  that  in  considering  such  testi- 
mony you  will  take  into  consideration  the  surrounding  circum- 
stances, and  the  situation  and  surroundings  of  the  defendant, 
and  the  probability  or  improbability  of  his  having  made  any 
such  admissions  or  statements.  It  is  simply  the  duty  of  the 
court  to  state  that  such  evidence  should  be  received  by  the  jury 
with  caution,  but  you  must  understand,  that  it  is  within  the 
sole  province  of  the  jury  to  weigh  such  evidence  and  give  it 
the  consideration  to  which  in  your  judgment  it  is  entitled  in 
view  of  all  the  other  evidence  in  the  case.  It  is  to  be  viewed 
in  the  light  of  all  the  surrounding  circumstances  appearing 
in  the  evidence — the  motives  which  may  have  induced  it — its 
consistency  with  the  other  evidence ;  and  the  jury,  without 
capriciously  or  causelessly  accepting  or  rejecting  any  portion, 
may  give  credit  to  all  or  part,  as  you  may  find  reason  for  be- 
lieving, or  you  may  reject  all  or  part  as  you  may  find  reason 
for  disbelieving,  in  view  of  all  the  facts  and  circumstances 
proved  in  the  case. 

12.  Impeachment.  A  person's  reputation  for  truth  is  made 
by  what  his  neighbors,  acquaintances  and  associates  generally 
say  of  him  in  this  regard.  If  they  generally  say  he  is  untruth- 
ful, that  makes  his  general  reputation  for  truth  bad.  On  the 
other  hand,  if  a  man's  neighbors  and  associates  say  nothing 
whatever  about  him  as  to  his  truthfulness,  that  fact  of  itself 
is  evidence  that  his  general  reputation  for  truth  is  good. 

Testimony  of  witnesses  has  been  offered  here  touching  the 
general  reputation  of  N.  A.  C.  for  truth  and  veracity. 

You  are  instructed  that  if  the  general  reputation  of  C. 
for  truth  is  successfully  impeached,  you  would  be  warranted 


BRIBERY.  1297 

in  believing  or  disbelieving  his  testimony  as  you  in  your  best 
judgment  may  determine.  You  are  the  judges  of  the  credibility 
of  the  witnesses,  and  of  the  weight  to  be  attached  to  the  tes- 
timony of  each  of  them.  You  are  not  bound  to  take  testimony 
of  any  witness  as  absolutely  true,  and  you  are  not  to  do  so  if 
you  are  satisfied  from  all  the  facts  and  circumstances,  proven 
on  the  trial,  that  such  witness  is  mistaken  in  the  matter  tes- 
tified to  by  him  or  from  any  other  reason  his  testimony  is  deemed 
by  you  to  be  untrue  and  unreliable.  The  effect  of  impeaching 
the  witness  goes  only  to  the  weight  that  should  be  given  to  his 
evidence.  It  is  submitted  to  you  better  to  enable  you  to  de- 
termine in  what  light  to  estimate  his  testimony;  but  it  should 
have  no  effect  as  to  facts  that  you  find  to  be  established  from 
evidence  offered  in  the  case  .  It  does  not  impeach  his  right  to 
be  protected  as  fully  as  the  right  of  any  other  person.  Tho 
law  as  to  its  remedial  arrangements  is  wholly  impartial. 

13.  Testimony  of  an  accomplice  offering  immunity.  It  has 
been  for  many  years  considered  that  a  prosecuting  attorney, 
or  counsel  for  the  state  or  government,  had  the  right  to  promise 
an  accomplice,  (now  legally  designated  as  an  aider  and  abettor 
by  the  statute  of  Ohio)  that  if  he  would  give  his  testimony 
freely  and  truthfully,  without  prevarication,  or  fraud,  he  should 
be  protected  from  prosecution,  or  whether  any  special  favor 
should  be  shown,  or  immunity  offered  him. 

Under  the  common  law  this  right  was  conceded  to  the  prose- 
cuting officer,  and  as  the  common  law  as  to  crimes  and  crim- 
inal procedure  is  no  part  of  the  law  of  this  state,  there  is  now 
no  legal  right  on  the  part  of  the  prosecuting  attorney  to  prom- 
ise favors  or  offer  immunity.  But  on  his  own  responsibility 
he  may  assume  to  promise  special  favor  or  immunity  to  an 
accomplice,  and  he  may  make  such  recommendation  in  refer- 
ence to  the  penalty  to  be  assessed  against  such  accomplice  as 
he  may  deem  necessary,  but  the  Court  is  the  final  judge  as  to 
what  shall  be  done  in  the  matter.  I  deem  it  to  be  my  duly  to 
make  this  statement,  that  you  may  consider  the  propriety  and 
effect  of  the  making  of  promises  of  favor  or  immunity  to  an 


1298  INSTRUCTIONS  TO  JURY. 

accomplice,  in  connection  with  the  weight  which  the  jury  shall 
give  the  testimony  of  any  such  witnesses  who  may  have  been 
promised  favor  or  immunity,  according  to  the  instructions  touch- 
ing this  matter. 

14.  Specific  charges  in  the  indictment.  I  come  now  to  a  con- 
sideration of  the  specific  charge  made  by  the  indictment  in 
this  case  against  the  defendant. 

15.  The  law  as  to  bribery.  The  law  of  this  state,  relating 
to  and  governing  the  charges  made  in  the  indictment,  and  which 
shall  be  your  guide  and  authority,  is  as  follows: 

"Whoever  corruptly  gives  *  *  *  to  any  state,  judicial  or 
other  officer,  *  *  *  either  before  or  after  his  election,  qual- 
ification, appointment,  or  employment,  any  valuable  thing,  to 
influence  him  in  respect  to  his  official  duty,  or  to  influence  his 
action,  vote,  opinion,  or  judgment,  in  any  matter  pending,  or 
that  might  legally  come  before  him,  *  *  *  shall  be  im- 
prisoned in  the  penitentiary  or  fined,"  as  provided  by  law,  but 
with  which  penalty  you  have  no  concern,  and  should  not  con- 
sider. 

This  statute  defines  the  crime  known  and  designated  as 
bribery. 

Before  you  can  find  the  defendant  guilty  of  the  charge  made 
against  him,  you  must  be  satisfied  or  find  beyond  a  reasonable 
doubt  the  existence  of  each  and  all  of  the  following  facts  and 
essential  elements  of  the  crime  contained  in  the  indictment: 
Omitted. 

The  law  of  Ohio  is  that  in  every  city  there  shall  be  a  depart- 
ment of  public  sendee  which  shall  be  administered  by  three  or 
five  directors,  as  fixed  by  ordinance  or  resolution  of  council. 

The  jury  are  instructed  that  by  law  it  was  one  of  the  duties 
of  said  B.,  as  a  member  of  such  board,  to  manage  and  supervise 
all  public  works,  to  supervise  the  improvement  and  repair  of 
streets 

You  must  find  also  that  there  was  some  occasion  or  call  or 
necessity  for  the  performance  of  some  official  duty  by  the  said 
C.  B.  B.,  as  such  member  of  the  board  of  public  service ;  that  is, 


BRIBERY.  1299 

you  must  find  that  there  was  some  matter  pending  before  C.  B.  B. 
as  such  member,  or  that  might  legally  come  before  him,  which 
would  require  his  action,  vote,  opinion  or  judgment  at  the  time 
or  about  the  time  mentioned  in  the  indictment. 

The  duty  imposed  by  law  upon  the  board  of  public  service 
and  upon  the  said  C.  B.  B.  as  a  member  thereof,  to  manage 
and  supervise  the  improvement  and  repair  of  streets,  required 
as  a  matter  of  law  that  the  said  board  of  public  service  of  the 
city  of  Columbus,  and  the  duty  by  law  was  imposed  upon 
C.  B.  B.  as  a  member  thereof,  to  receive  bids  and  award,  make 
and  execute  contracts  for  the  improvement  and  repair  of  streets. 

And  if  you  find  that  there  was  pending  before  said  board  of 
public  service,  and  said  C.  B.  B.  as  a  member  thereof,  at  the 
time  which  the  indictment  charges  defendant  with  having  given 
said  B.  the  sum  of  $ ,  any  matter  relating  to  the  im- 
provement or  repair  of  any  street,  or  that  any  such  matter 
might  legally  come  before  said  B.,  and  you  further  find  that 
the  defendant  gave  to  said  B.,  with  the  corrupt  purpose  and 
intent  to  influence  his  official  action,  or  obtain  his  vote,  opinion 

or  judgment,  the  said  sum  of  $ ,  or  other  valuable  thing, 

and  that  the  said  B.  received  the  said  sum  of  $ ,  or  other 

valuable  thing,  with  the  corrupt  purpose  and  intent  on  his, 
B.'s,  part  to  act  in  his  official  capacity,  or  to  vote,  give  his  opin- 
ion or  exercise  his  judgment  in  some  matter  falling  within  his 
official  duty,  in  a  matter  pending  before  him,  as  a  member  of 
said  board,  or  touching  a  matter  that  might  legally  come  before 
him,  then  it  would  be  your  duty  to  render  a  verdict  of  guilty 
against  the  defendant. 

To  corruptly  give  any  valuable  thing,  means,  in  law,  to  give 
money  or  other  valuable  thing  with  intent  to  gain  an  advantage 
not  consistent  with  official  duty,  and  not  consistent  with  the 
rights  of  others ;  it  means  something  forbidden  by  law.  Or 
again,  to  corruptly  give  anything  means  to  give  it  dishonestly, 
or  to  bribe  another,  to  obtain  some  action  on  the  part  of  an 
official  to  incline  him  to  act  contrary  to  the  known  rules  of 
honesty  and  integrity. 


1300  INSTRUCTIONS  TO  JURY. 

To  warrant  you  in  finding  defendant  guilty  of  the  crime 
charged,  you  must  not  only  be  satisfied  beyond  a  reasonable 
doubt  that  the  defendant  gave  the  money,  and  that  said  B. 
received  the  same,  as  above  explained,  but  you  must  be  satisfied 
beyond  a  reasonable  doubt  that  the  same  was  given  and  re- 
ceived with  the  corrupt  purpose  of  causing  said  B.  to  act  in 
his  official  capacity,  as  already  explained,  contrary  to  known 
rules  of  honesty  and  integrity. 

16.  Intent.  You  must  find  that  the  defendant  corruptly  gave 
B.  the  money  with  the  intent  to  corruptly  influence  the  official 
action  of  the  said  B. 

Intent  is  an  operation  of  the  mind  not  usually  proved  by 
direct  and  positive  evidence,  but  it  may  be  inferred  from  the 
facts  and  circumstances  appearing  from  the  evidence. 

17.  Corpus  delicti — Must  he  proved.  I  have  stated  to  the  jury 
that  before  you  can  find  the  defendant  guilty  of  the  crime  charged 
against  him,  that  you  must  not  only  find  that  the  defendant 

corruptly  gave  said  C.  B.  B.  the  $ ,  as  charged  in  the 

indictment,  but  you  must  also  find  that  the  said  C.  B.  B.  re- 
ceived said  sum  of  $ from  the  said  defendant  with  the 

corrupt  purpose  of  influencing  said  B.'s  official  action,  or  to 
influence  him,  said  B.,  in  his  vote,  opinion,  judgment,  in  any 
matter  pending  before  him,  the  said  B.,  as  an  official,  or  that 
might  legally  come  before  him  as  such    official. 

The  defendant  could  not  corruptly  give  the  said  B,  the  alleged 

$ ,  as  charged,  unless  said  B.  received  it.     To  give  implies 

that  it  must  have  been  received  by  B.  And  of  the  existence  of 
the  latter  fact  you  must  be  satisfied  beyond  a  reasonable  doubt. 

Before  you  can  find  the  defendant  guilty  of  the  crime  of 
bribery  charged,  you  must  find  beyond  a  reasonable  doubt  that 
the  crime  was  committed.  This  is  what  is  termed  in  law  corpus 
delicti,  or  body  of  the  crime,  or  in  pure  Anglo-Saxon,  that  the 
crime  was  committed. 

I  charge  you,  gentlemen,  by  way  of  caution,  that  in  order 
that  men  may  not  be  convicted  of  crimes,  unless  the  jury  are 
satisfied  beyond   a  reasonable   doubt   that  one  has  been   com- 


BRIBERY.  1301 

mitted,  the  law  is.  that  before  you  can  find  the  defendant  guilty 
of  the  crime  charged  against  him,  you  must  be  satisfied  beyond 
a  reasonable  doubt,  not  only  that  B.  was  bribed,  but  that  de- 
fendant corruptly  gave  him  the  money  charged  with  which  he 
was  bribed,  as  this  term  has  been  defined  and  explained  to  you. 
You  are  instructed,  however,  gentlemen,  before  you  may  find 
that  B.  received  the  said  $ and  that  the  defendant  cor- 
ruptly gave  it  to  him  in  the  manner  and  for  the  purpose  here- 
inbefore explained,  it  is  not  necessary  that  this  fact,  if  you 
find  it  to  be  a  fact,  should  be  proved  by  what  is  termed  in 
law  as  direct  and  positive  evidence,  but,  like  any  other  fact  or 
facts,  it  may  be  proved  by  presumptive  and  circumstantial  evi- 
dence, if  of  such  character  as  not  to  leave  a  reasonable  doubt  in 
your  minds.  Each  case  must  depend  upon  its  own  peculiar 
circumstances,  and  the  corpus  dcliciti  must  be  shown  by  such 
evidence  as  is  capable  of  being  adduced,  and  such  an  amount 
and  combination  of  relevant  facts,  whether  direct  or  circum- 
stantial, as  may  establish  the  guilt  of  the  defendant  to  the  ex- 
clusion of  a.  reasonable  doubt.1 

18.  Direct  and  circumstantial  evidence.  Direct  evidence  is 
proof  of  the  facts  by  witnesses  who  saw  the  acts  or  heard  the 
words  spoken. 

Circumstantial  evidence  is  the  proof  of  such  facts  and  cir- 
cumstances connected  with  or  surrounding  the  commission  of 
the  crime  charged,  as  tend  to  show  the  guilt  or  innocence  of  the 
defendant ;  it  is  such  proof  of  facts  standing  or  existing  in  such 
relation  to  the  ultimate  fact  or  facts  to  be  proved  that  such 
ultimate  fact — which  is  the  crime  and  the  defendant's  connec- 
tion therewith — may  be  inferred  or  deduced  from  such  sur- 
rounding facts  and  circumstances. 

And  if  these  facts  and  circumstances  are  sufficient  to  satisfy 
the  jury  of  the  guilt  of  the  defendant  beyond  a  reasonable 
doubt,  then  such  evidence  is  sufficient  to  authorize  the  jury  in 
finding  a  verdict  of  guilty. 

19.  Extrajudicial  admission  must  be  corroborated.  I  have 
explained  to  you,  gentlemen,  that  before  you  can  find  the  de- 


1302  INSTRUCTIONS   TO    JURY. 

fendant  guilty  of  the  crime  charged,  that  you  must  be  satisfied 
beyond  a  reasonable  doubt  of  the  existence  of  the  corpus  delicti, 
that  is,  that  B.  was  bribed.  I  have  explained  to  you  also  that 
this  may  be  shown  by  circumstantial  as  well  as  by  direct  evidence. 
It  is  my  duty  to  give  you  the  further  instruction  that  an  extra- 
judicial confession  or  admission,  that  is,  one  made  out  of  court, 
is  not  alone  sufficient  to  warrant  you  in  arriving  at  a  conclusion 
that  the  defendant  is  guilty  of  the  crime  charged,  should  you 
find  any  such  admission  to  have  been  made.  Before  you  could 
find  the  defendant  guilty  in  such  a  case,  you  must  find  that 
there  is  other  evidence,  direct  or  circumstantial,  which  corrobo- 
rates such  extrajudicial  confession  or  admission,  and  you  must 
be  satisfied  beyond  a  reasonable  doubt  from  all  the  evidence, 
that  the  defendant  is  guilty.  An  extrajudicial  confession  or 
admission  made  by  one  accused  of  crime  is  one  made  out  of 
court,  and  is  to  be  distinguished  from  a  declaration  made  by 
one  accused  of  a  crime  in  pursuance  of  a  common  design  or 
conspiracy,  if  you  find  any  such  declaration  to  have  been  made. 

20.  Claims  as  to  conspiracy.  It  is  charged  by  the  prosecution 
in  this  case,  but  denied  by  the  defendant,  that  there  was  a  con- 
spiracy formed  between  several  parties,  including  the  defendant, 
to  procure  the  corrupt  municipal  action  by  the  board  of  public 
service,  in  awarding  the  contract  to  pave  East  Broad  street,  in 
the  city  of  Columbus,  which  resulted  in  the  commission  of  the 
crime  by  the  defendant  as  charged,  as  well  as  in  the  giving  of 
other  sums  of  money  to  other  members  of  the  said  board  of 
public  service,  by  other  persons  alleged  to  be  conspirators  with 
the  defendant. 

It  is  claimed  further  by  the  state,  and  denied  by  the  defend- 
ant, that  this  alleged  conspiracy,  with  which  defendant  is  alleged 
to  have  been  connected,  was  a  common  scheme  and  design  to 
defraud  the  city  in  obtaining  the  contracts  in  question;  and 
the  defendant  enters  a  general  denial  to  the  charges  made 
against  him. 

The  court  has  admitted  the  testimony  touching  any  and  all 
matters  pertaining  to  the  charge  in  the  indictment,  as  competent 


BRIBERY.  1303 

evidence,  which  is  now  before  you  for  your  careful  and  thought- 
ful consideration. 

21.  The  law  as  to  conspiracy.  Having  stated  the  claims  of  the 
parties,  it  will  now  be  the  duty  of  the  court  to  instruct  you  more 
particularly  as  to  the  law  regarding  conspiracy,  as  you  will 
apply  it  in  the  consideration  of  the  testimony  offered  in  this 
case. 

The  question  whether  there  was  or  was  not  a  conspiracy  in 
the  transaction  involved  and  under  investigation  in  this  case  is 
for  the  jury  to  decide.  To  warrant  the  jury  in  finding  that 
there  was  a  conspiracy  as  charged  in  this  case,  it  is  not  neces- 
sary that  there  should  be  evidence  that  should  expressly  show 
that  fact,  though  it  is  essential  that  you  should  find  that  there 
was  a  common  design  between  the  parties  charged  with  having 
formed  the  conspiracy,  to  warrant  you  in  finding  that  there  was 
a  conspiracy  in  this  case,  still  you  are  instructed  that  it  is  not 
necessary  that  the  defendant  here  and  the  other  parties  alleged 
to  have  formed  such  conspiracy  came  together  and  actually 
agreed  in  terms  to  have  that  common  design  and  to  pursue  it 
by  common  means. 

If  it  should  appear  from  the  evidence  offered  in  this  case 
that  the  defendant  and  others  alleged  to  have  participated  in 
the  common  design  pursued,  by  their  acts  and  declarations,  the 
same  object,  by  the  same  means,  one  performing  one  part,  and 
another,  another  part  of  the  same,  so  as  to  complete  it  with  a 
view  and  purpose  of  the  attainment  or  acomplishment  of  the 
same  object  or  end,  the  jury  may  consider  such  evidence,  if  any 
such  evidence  there  is,  to  determine  whether  the  defendant  and 
the  others  charged  were  or  were  not  all  engaged  in  the  conspiracy 
to  effect  the  object  of  such  conspiracy. 

For  the  purpose  of  determining  whether  or  not  there  was  a 
conspiracy  as  charged  here,  the  jury  in  this  case  may  consider 
any  and  all  acts,  declarations  of  the  parties  alleged  to  have 
formed  the  alleged  conspiracy  or  to  have  participated  therein, 
as  well  as  any  and  all  writings  or  documents  which  may  have 
been  prepared  by  the  parties  alleged  to  have  been  engaged  in 


1304  INSTRUCTIONS   TO   JURY. 

said  conspiracy,  as  well  as  other  evidence  or  documents  offered 
in  evidence,  which,  in  the  opinion  and  judgment  of  the  jury, 
may  have  any  bearing  thereon  or  connection  therewith. 

The  conspiracy,  as  charged  on  the  part  of  the  state,  as1  before 
stated,  is  an  alleged  conspiracy  claimed  to  have  been  formed  by 
defendant  and  others,  to  defraud  the  city  by  obtaining  the 
corrupt  or  fraudulent  action  of  the  board  of  public  service  of 
the  city  of  Columbus,  in  awarding  the  contracts  for  the  paving 
of  East  Broad  street  in  said  city. 

In  your  consideration  of  the  evidence  in  this  case,  and  in 
determining  the  question  of  fact  whether  or  not  there  was  a 
conspiracy  as  claimed,  it  will  be  your  duty  to  ascertain  and 
determine,  not  only  the  existence  of  the  alleged  conspiracy,  but 
also  its  purpose  and  object,  whether  it  was  formed  for  an  un- 
lawful purpose,  whether  it  was  primarily  for  the  purpose  of 
procuring  the  award  of  the  contract  fraudulently,  or  whether 
it  was  formed,  if  you  find  that  any  was  formed,  for  the  purpose 
of  defrauding  the  city,  and  obtaining  the  corrupt  municipal 
action  by  the  board  of  public  service  in  the  matter  of  the  award 
of  the  contracts  in  question. 

If  you  are  satisfied  beyond  a  reasonable  doubt  that  a  con- 
spiracy was  formed  in  the  first  instance  to  fraudulently  and  dis- 
honestly obtain  the  award  of  the  contract  in  question,  then  in 
your  further  investigations  and  considerations  of  the  evidence, 
you  may  consider  each  and  all  of  the  acts  of  those  whom  you 
may  find  to  have  been  so  engaged  in  such  common  design  to 
defraud  the  city,  or  to  fraudulently  obtain  the  award  of  the  con- 
tract in  question — whether  such  acts  and  declarations  relate  to 
such  alleged  conspiracy,  or  whether  they  pertain  to  the  manner 
and  means  of  obtaining  or  influencing  the  official  action  of  the 
members  of  said  board  of  public  service. 

If  you  should  be  satisfied  from  the  evidence  that  there  was 
such  a  conspiracy,  and  that  the  defendant  was  a  party  thereto, 
you  must  then  determine  whether  it  was  for  the  alleged  unlawful 
purpose  of  defrauding  the  city,  by  fraudulently  obtaining  the 
award  of  the  contract  in  question,  or  whether  the  acts  of  alleged 


BRIBERY.  1305 

bribery  by  this  defendant  and  others  engaged  in  the  alleged 
conspiracy  was  an  incident  of  such  conspiraey,  or  whether  the 
purpose  of  the  alleged  conspiracy  to  obtain  the  award  of  the 
said  paving  contracts  was  to  obtain  the  same  by  fraud,  as  well 
as  through  corrupt  means  as  by  bribing  the  members  of  the 
board  of  public  service. 

If  you  are  satisfied  beyond  a  reasonable  doubt  that  there  was 
such  a  conspiracy  for  such  purpose  or  purposes,  and  that  the 
defendant  was  a  party  thereto,  then  you  may  consider  such 
fact  of  conspiracy  if,  in  your  judgment,  it  is  a  fact,  as  well  as 
any  and  all  acts  and  declarations  of  all  parties  thereto,  including 
those  of  the  defendant,  if  you  find  him  to  be  a  member,  together 
with  all  the  other  facts  and  circumstances  as  appears  from  the 
evidence  in  this  case,  in  determining  the  guilt  or  innocence  of 
the  defendant  of  the  charge  made  against  him  in  the  indictment. 
If  you  are  not  satisfied  of  the  existence  of  such  conspiracy,  and 
of  the  defendant's  connection  with  it,  then  you  should  not 
consider  it  in  determining  the  guilt  or  innocence  of  the  accused, 
of  the  crime  charged  against  him.2 

iSee  50  Am.  St.,  138-9,  7S  Am.  Dec.  24S.  11  Am.  St.  107;  State  v.  Rhoads. 

15   N.   P.    (X.S.)    — . 
-  State   v.    Rhoads,    Franklin    Co.    Com.   Pleas,    Kinkead,    J. 


CHAPTER   LXXXIL 
BROKER'S  REAL  ESTATE   COMMISSION. 


BEC.  SEC. 

1585.  Real  estate  commission — Ac-       1589. 

tion    for    recovery    of. 

1.  Statement  of  claims. 

2.  The  c  o  n  t  r  a  c  t — What 
plaintiff   must   establish. 

3.  When  purchaser  buys 
premises  on  terms  other 
than  those  communi- 
cated by   broker.  1590. 

1586.  Entitled    to    commission 

though     owner     declines 
to   sell. 

1587.  Entitled  to  commission  when 

owner     enters     into     en-        1591. 
forceable    contract    with 
purchaser. 

1588.  When    broker    a    director   of 

corporation      purchasing 
property. 


Broker  must  show  that  he 
accomplished  all  that 
was  required  of  him  by 
the  employment,  that  his 
efforts  were  efficient 
cause  of  sale — If  not, 
and  owner  makes  sale, 
no  recovery  can  be  had. 

Entitled  to  compensation 
when  purchaser  produced 
— Though  owner  conducts 
negotiations  and  sells  on 
different   terms. 

Right  of  agent  to  commis- 
sion when  several  em- 
ployed —  Purchaser  pro- 
duced must  be  client  of 
agent  first  conducting 
negotiations. 


Sec.  1585.    Real  estate  commission— Action  for  recovery  of. 

1.  Statement  of  claims. 

2.  The  contract — What  plaintiff  must  establish. 

3.  When  purchaser  buys  premises  on  terms  other  than  those 

communicated  by  broker. 

1.  Statement  of  claims.  This  is  an  action  brought  for  the 
recovery  of  a  sum  of  money  which  plaintiff  claims  to  be  due 
from  the  defendant  on  a  specific  contract  alleged  to  have  been 
made  between  the  parties  by  which  the  defendant  agreed  to  pay 

the  plaintiff  the  sum  of  $ for  services  to  be  rendered  by 

plaintiff  in  the  sale  of  property  belonging  to  the  defendant. 

The  defendant  enters  a  general  denial. 

1306 


broker's  real,  estate  commission.  1307 

2.  The  contract — What  plaintiff  must  establish.  The  question 
is  what  the  contract  was  between  the  parties.  Where  an  owner 
of  real  estate  makes  a  specific  contract  with  another  to  act  as 
a  broker  or  agent  to  sell  his  property,  such  sale  to  be  made  upon 
certain  terms  and  conditions  which  are  prescribed  and  stated 
by  the  owner,  to  the  broker  or  agent,  the  latter,  the  agent,  to 
be  entitled  to  a  recovery  of  the  amount  agreed  upon  between 
himself  and  the  owner  as  commission  for  making  the  sale  or  for 
producing  the  purchaser,  it  is  incumbent  upon  him,  the  agent, 
to  prove  that  he  procured  a  purchaser  who  was  ready,  willing 
and  able  to  purchase  and  take  the  property  upon  the  precise 
terms  and  conditions  named  by  the  owner  in  the  contract  made 
by  him  with  the  agent  in  which  the  owner  has  authorized  the 
agent  to  make  the  sale.  The  broker  must,  therefore,  bring  a 
purchaser  to  the  owner  of  the  property  who  is  willing  to  take 
the  property  on  the  terms  named  by  the  owner  in  the  contract 
made  by  him  with  the  agent  and  the  sale  must  have  been  con- 
summated through  the  agency  or  instrumentality  of  the  agent.1 

3.  When  purchaser  buys  premises  on  terms  other  than  those 
communicated  by  broker.  This  is  the  general  doctrine  which 
governs  and  applies  to  this  class  of  contracts,  but  it  is  subject, 
however,  to  another  different  rule  that  is  equally  as  well  estab- 
lished as  a  rule  of  law,  to  the  effect  that  a  broker  or  agent  who 
is  employed  by  a  specific  contract  to  procure  a  purchaser  for, 
or  to  effect  a  sale  of  property  for  an  owner  thereof  at  a  specified 
price,  is  entitled  to  his  commission  as  agreed  upon  between  them, 
if  such  agent  produces  a  purchaser  who  is  able  and  willing  to 
purchase  the  property  on  terms  other  than  those  named  by  the 
owner  to  the  agent,  if  and  providing  the  purchaser  is  able  and 
willing  to  purchase  and  does  purchase  on  terms  which  are 
entirely  satisfactory  to  the  owner,  though  such  terms  are  dif- 
ferent from  those  prescribed  by  the  owner  in  his  contract  with 
the  agent.  If,  therefore,  such  owner  having  made  a  special 
contract  with  the  agent,  continues  negotiations  in  connection 
with  this  sale,  receiving,  accepting  and  acting  upon  the  services 
of  such  agent,  and  voluntarily  agrees  and  consents  to  make,  and 
does  make  the  sale  to  the  purchaser  produced  by  such  agent  upon 


1308  INSTRUCTIONS    TO    JURY. 

other  and  different  terms  than  those  prescribed  in  the  contract 
made  with  the  agent  in  the  first  instance,  such  agent  is  entitled 
to  the  commission  or  compensation  as  originally  agreed  upon 
if  the  owner  fails  to  repudiate  his  first  agreement  or  fails  to 
agree  upon  some  other  amount  to  be  paid  as  compensation  in 
making  the  sale  upon  the  different  terms.  The  jury  will  apply 
these  rules  in  determining  the  question  of  the  making  of  the 
contract  which  is  submitted  to  you,  the  same  not  having  been 
committed  to  writing.2 

ljohnson  v.  Wright,   124  Iowa,  61;   Watters  v.  Dancey,  23  S.  D.  481,   139 

Am.   St.   1071.     But  see  sees.   1289,   1290  post. 
2  Cessano  v.  Walker,  Franklin  Co.  Com.  PI.,  Kinkead,  J. 

Sec.  1586.     Entitled  to  commission  though  owner  declines  to 

sell. 

The  jury  is  instructed  that  an  agent  who  procures  a  purchaser 

of  real  estate  under  contract  with  another  to  do  so,  who  is  ready, 

willing  and  able  to  purchase  the  same  at  the  terms  fixed,  and  at 

a  price  stated,  is  entitled  to  recover  his  commission,  even  though 

the  owner  declines  to  sell.1 

iRyer  v.  Minningham,  78  N.  J.  L.  742;   Owen  v.  Riddle,  81  N.  J.  L.  546, 
79  Atl.  886,   Ann.  Cas.    1912,  45. 

Sec.  1587.     Entitled  to  commission  when  owner  enters   into 
enforceable  contract  with  purchaser. 

The  jury  is  instructed  that  where  one  is  employed  as  a  broker 
to  procure  a  purchaser  for  property,  and  presents  to  the  prin- 
cipal or  the  owner  of  the  property  a  proposed  purchaser,  it  is 
within  the  right  of  such  owner  then  to  decide  whether  the  person 
presented  is  acceptable.  If  (without  fraud  or  other  improper 
practice  on  the  part  of  the  broker)  the  principal  or  owner  ac- 
cepts the  person  presented,  and  enters  into  an  enforceable  con- 
tract with  him,  the  commission  is  thereupon  fully  earned,  and 
such  agent  or  broker  is,  therefore,  entitled  to  recover  the  amount 
thereof,  even  though  it  may  subsequently  turn  out  that  the 
purchaser  is  unable  to  comply  with  his  contract,  and  on  that 
account  the  sale  is  not  consummated  by  the  transfer  of  the 
property. 


broker's  real  estate  commission.  1309 

So  if  the  jury  find  that  the  contract  between  the  parties  was 
an  ordinary  contract,  made  without  any  conditions,  the  broker 
being  employed  in  the  usual  way,  and  that  there  was  no  bargain 
entered  into  between  the  parties,  except  that  the  commission 
was  to  be  paid  the  broker  in  case  the  sale  went  through,  and 
the  defendant  accepted  the  purchaser  produced  by  plaintiff, 
and  entered  into  an  enforceable  contract  with  him  for  the  pur- 
chase and  sale  of  the  property,  then  plaintiff  is  entitled  to 
recover.1 

iKelley   v.   Baker,    132   N.   Y.    1,   28  Am.   St.   542;    Francis   v.   Baker,   45 
Minn.  83. 

Sec.  1588.  When  broker  a  director  of  corporation  purchasing 
property. 

The  jury  is  instructed  that  where  a  broker  who  is  employed 
by  an  owner  of  real  estate  to  sell  property  is  a  director  or  member 
of  a  corporation  which  is  the  purchaser  produced  by  such  broker 
of  the  property  he  is  employed  to  sell,  he  is  not  entitled  to  his 
commission  unless  seller  or  owner,  being  in  possession  of  all  the 
facts  of  the  relation  of  the  broker  to  the  purchaser,  consents  and 
agrees  to  pay  the  commission  under  such  circumstances.1 

So  if  the  jury  find — 

i  Humphrey    v.   Transp.    Co.,    107   Mich.    165;    Xekarda   v.   Presberger,    123 
App.  Div.  418. 

Sec.  1589.  Broker  must  show  that  he  accomplished  all  re- 
quired of  him  by  the  employment,  that  his 
efforts  were  efficient  cause  of  sale — If  not, 
and  owner  makes  sale,  no  recovery  can  be 
had. 

The  jury  is  instructed  that  before  a  real  estate  agent  or  broker 
is  entitled  to  recover  a  commission  for  procuring  a  purchaser  of 
real  estate  (or  making  a  sale),  he  is  bound  to  show  that  he  has 
accomplished  and  done  all  the  things  that  he  undertook  to  do 
under  the  contract  of  employment,  it  is  incumbent  on  him  to 
show  thai  he  found  and  produced  :i  person  who  was  ready. 
willing  and  financially  able  to  purchase  the  property  which  he 


1310  INSTRUCTIONS   TO   JURY. 

was  engaged  to  sell,  at  the  price  and  upon  the  terms  and  con- 
ditions fixed  by  the  owner  of  the  property  and  the  one  who 
employed  him.  He  must  show  also  that  he  was  the  efficient  agent 
or  procuring  cause  of  the  sale,  and  that  the  means  employed 
by  him  and  his  efforts  resulted  in  a  sale. 

So  where  a  broker  under  employment  by  the  owner  opens 
up  negotiations  with  a  proposed  purchaser,  but  abandons  them 
without  fault  of  the  owner,  and  the  owner  himself  subsequently 
sells  the  same  property,  without  further  effort  on  the  part  of  the 
broker,  in  such  case  the  owner  is  not  liable  to  the  broker  for 
commissions.1 

So  if  the  jury  finds. 

■i  Chaffee  v.  Widman,  48  Colo.  34,  108  Pac.  995,  139  Am.  .St.  220.  See 
note  in  latter  report  on  pp.  225-259,  Necessity  of  Broker  Being 
Procuring  Cause  of  Sale,  numerous  cases  cited  on  p.  245. 

Sec.  1590.  Entitled  to  compensation  when  purchaser  pro- 
duced though  owner  conducts  negotiations 
and  sells  on  different  terms. 

The  jury  is  instructed  that  a  broker  employed  to  sell  land  is 
entitled  to  his  compensation  if  he  brings  to  the  seller  a  purchaser 
able,  ready  and  willing  to  purchase  on  the  terms  named,  or  if 
he  brings  them  together  and  the  sale  is  afterward  consummated 
by  the  seller  himself. 

So,  if  the  broker  introduces  a  prospective  purchaser,  and  the 
owner  undertakes  to  conduct  the  negotiations,  and  finally  sells 
the  property  for  less  than  the  terms  named  in  the  contract  with 
the  broker,  he  thereby  waives  his  right  to  insist  on  the  terms  of 
the  contract  in  that  respect,  and  is  liable  at  least  for  a  reason- 
able commission,  and  the  contract  may  be  considered  as  a  guide 
by  the  jury  in  arriving  at  what  is  reasonable  compensation.1 

i  Smith  v.  Sharpe,  162  Ala.  433,  50  South.  381,  136  Am.  St.  52;  Jones  v. 
Henry,  15  Misc.  151;  Plant  v.  Thompson,  42  Kan.  664,  16  Am.  St. 
512;  Sylvester  v.  Jackson,  110  Tenn.  392.  The  rule  of  this  instruc- 
tion is  not  uniform,  many  authorities  holding  that  a  broker  must 
make  the  sale  according  to  the  terms  fixed  in  the  contract  made 
by  him  with  the  owner,  and  that  he  must  be  the  efficient  cause  of 
the  sale.  See  note  and  cases  139  Am.  St.  220-259.  See  ante,  sees. 
1285  and  1289. 


broker's  real  estate  commission.  1311 

Sec.  1591.  Right  of  agent  to  commission  when  several  em- 
ployed— Purchaser  produced  must  be  client 
of  agent  first  conducting  negotiations. 

The  duty  of  a  vendor  who  employs  more  than  one  broker  to 
sell  his  property  is  to  allow  them  to  act  independently  and  to 
remain  neutral  as  between  them,  as  well  as  between  them  and 
a  purchaser.  The  owner  can  not  step  in  and  complete  the  sale 
and  escape  liability  for  commission.  Such  owner  is  required  to 
exercise  the  utmost  good  faith  with  the  brokers. 

Where  property  is  listed  by  an  owner  with  several  agents, 
who  are  under  such  employment  at  the  same  time,  the  one  who 
first  sells  the  property  is  entitled  to  the  commission.  But 
before  such  agent  or  broker  can  be  considered  as  the  producer 
of  a  purchaser,  the  party  whom  he  presents  to  the  vendor  and 
owner  must  be  a  client  or  customer  of  his  own,  and  not  one  then 
sustaining  existing  relations  to  another  broker  under  like  em- 
ployment and  who  is  at  the  time  conducting  negotiations  con- 
cerning the  sale.  The  broker  or  agent  who  was  first  in  negotia- 
tion with  the  proposed  purchaser  and  vendor  continues  to  sustain 
that  relation  until  it  is  expressly  broken  off,  or  the  matter  of 
the  purchase  has  ceased  to  be  held  by  him  under  consideration. 
The  employer,  with  notice  of  the  pendency  of  such  negotiations, 
can  not  escape  liability  to  the  broker  for  his  commission  by 
selling  to  his  customer  through  another,  even  though  he  first 
discharges  the  former,  if  he  does  so  without  giving  him  a  reason- 
able time  to  effect  the  sale.1 

i  Jennings  v.  Trummer,  52  Ore.  149,  96  Pac.  874,  132  Am.  St.  680;  Tinsley 
v.  Scott,  69  111.  App.  352;  Day  v.  Porter,  60  111.  App.  386. 


CHAPTER   LXXXIII. 
BUILDING  CONTRACTS. 

SEC.  SEC. 

1592.  Substantial  departure  there-       1597.     Same — Acts   showing  knowl- 

from    without    consent —  edge    of   departure    from 

Recovery  for  extras.  contract. 

1593.  Failure  to  do  work  in  work-       1598.     Same — 'Settlement     without 

manlike  manner.  fraud  or   mistake. 

1594.  Substantial  performance,  ex-       1599.     Contract  as   to  extras. 

cept  slight  variations.  1600.     Substantial    performance    of 

1595.  Deduction       for      unfinished  contract. 

parts.  1601.     Extras  —  Whether     contract 

1596.  Owner   estopped   by   conduct  express    or    implied,    or 

in   acquiescence   in   work  work  voluntarily  done. 

not    done    according    to 

contract. 

Sec.  1592.     Substantial  departure  therefrom  without  consent — 
Recovery  for  extras. 

It  being  admitted  by  both  parties  that  written  contracts  were 
entered  into  between  them,  these  should  control  so  far  as  appli- 
cable to  the  matters  in  contention,  except  as  you  find  that  they 
have  been  modified  by  the  mutual  consent  of  the  parties. 

Any  substantial  variation  or  departure  in  construction  or 
material  from  that  provided  for  by  the  terms  of  the  written  con- 
tract, unless  made  with  the  consent  and  approval  of  the  defend- 
ant, though  it  made  the  completion  of  the  job  more  expensive 
than  provided  for  in  the  contract,  would  not  constitute  such 
extras  as  would  entitle  the  plaintiff  to  recover  therefor. 

To  enable  the  plaintiffs  to  recover  for  extra  expenses  by  reason 
of  deviations  from  the  plans  stipulated  for  in  the  contract,  it 
must  appear  that  the  same  were  made,  and  with  the  authority 
of  the  defendant,  either  express  or  implied,  and  under  such  cir- 
cumstances that  implied  that  he  should  pay  therefor.  *  *  * 
If  you  find  from  a  preponderance  of  the  evidence,  and  guided 
and  limited  by  these  instructions  to  you,  that  such  extra  work 
1312 


BUILDING    CONTRACTS.  1313 

and  material  were  furnished,  and  if  you  also  further  find  that 
the  defendant  became  obligated  to  pay  therefor,  as  herein  defined 
and  limited,  then  whatever  extras  the  plaintiffs  did  so  actually 
provide  would  constitute  a  valid  claim,  to  the  extent  of  their 
reasonable  value,  at  the  time  and  place  they  were  applied,  unless 
tlic  price  for  such  modifications  were  expressly  agreed  upon,  in 
which  case  the  express  agreement  should  prevail. 

If  anything  was  omitted  or  changes  were  made  to  an  inferior 
and  less  expensive  mode  of  construction  than  stipulated  for  in 
the  contract,  the  defendant  would  be  entitled  to  have  the  value 
of  the  omitted  material  and  the  difference  in  the  value  of  the  less 
valuable  material  from  that  contracted  for  deducted  from  any 
balance  due  the  plaintiffs  on  the  contract,  unless  substitutions 
were  made  of  other  materials  or  work  in  lieu  thereof  by  the 
authority  of  the  defendant,  and  which  were  considered  by  the 
parties  as  an  equivalent  therefor.  To  the  extent  the  parties 
agreed  upon  such  omissions  or  substitutions  you  may  consider  the 
contract  modified,  and  in  adjusting  balances,  allow  or  deduct 
what  the  evidence  shows  would  be  reasonable,  having  reference 
to  the  stipulations  of  the  contract  in  that  respect,  unless  you 
find  these  matters  to  have  been  agreed  upon  by  the  parties  as 
to  price,  in  which  case  the  agreement  should  prevail.1 
i  Voris,  J.,  in  Wilhelm   v.  Colohan,  Summit  Co.  Com.  Pleas. 

Sec.  1593.     Failure  to   do  work  in  workmanlike  manner  ac- 
cording to  contract. 

If,  in  respect  to  any  of  the  matters  alleged  in  the  defendant's 
answer,  the  plaintiffs  did  not  do  their  work  in  a  workmanlike 
manner,  and  according  to  the  stipulations  of  the  contract,  then 
the  defendant  would  be  entitled  to  have  such  difference  in  value 
deducted  from  the  contract  price,  unless  you  find  that  the  de- 
fendant accepted  the  same  as  a  complin  nee  with  the  contracts, 
or  settled  therefor  as  herein  qualified.  We  include  in  this  in- 
struction those  matters  agreed  upon  though  not  included  in  the 
written  contracts.1 

i  Voris,  J.,  in  Wilhelm  v.  Colohan,  Summit  Co.  Com.  Pleas. 


1314  INSTRUCTIONS   TO    JURY. 

Sec.  1594.     Substantial  performance,  except  slight  deviations. 

If  the  plaintiffs  fully  performed  their  part  of  the  contract, 
then  they  would  be  entitled  to  recover  the  full  price  contracted 
for,  less  payments  actually  made. 

But  if  the  plaintiffs  substantially  complied  with  the  contract 
except  in  some  slight  deviations,  they  would  be  entitled  to  re- 
cover the  contract  price,  less  the  diminution  in  value  to  the  owner 
on  account  of  the  deviations ;  or  what  the  house  was  actually 
worth  less  on  account  of  these  departures.1 
i  Voris,  J.,  in  Wilhelm   v.  Colohan,  Summit  Co.  Com.  Pleas. 

Sec.  1595.     Deduction  for  unfinished  parts. 

The  jury  is  instructed  that  plaintiff  is  entitled  to  recover  the 
balance  due  at  the  contract  price,  less  such  sum  as  it  may  require 
to  construct  or  complete  the  unfinished  parts  according  to  the 
terms  and  conditions  of  the  contract,  as  well  as  any  reasonable 
expense  made  necessary  by  being  compelled  to  procure  such 
completion.1 
i  Voris,  J.,  in  Wilhelm  v.  Colohan,  Summit  Co.  Com.  Pleas,  26  0.  S.  101. 

Sec.  1596.     Owner   estopped   by   conduct  in   acquiescence   in 
work  not  done  according  to  contract. 

If  the  work  was  not  according  to  the  contract  and  you  find 
that  the  defendant  stood  by  and  saw  them  prosecute  the  work 
without  objection,  and  was  benefited  by  the  labor  and  materials, 
the  plaintiffs  would  be  entitled  to  compensation  to  the  extent 
of  such  benefit;  that  is,  what  the  same  were  reasonably  worth, 
but  not  to  exceed  the  contract  price.  Or,  when  the  same  was 
completed,  but  lacking  in  quality,  the  contract  price  is  to  be 
reduced  by  the  difference  in  the  value  of  the  work  as  it  would 
have  been  by  the  contract  and  as  it  actually  was. 

Defendant  is  entitled  to  have  his  contract,  in  its  true  spirit 
and  intent,  substantially  executed,  except  as  its  terms  have  been 
waived  by  C,  or  his  duly  authorized  agent  in  the  premises,  and 
any  failure  on  the  part  of  plaintiff  to  so  perform  entitles  de- 


BUILDING    CONTRACTS.  1315 

fendant  to  reduction  of  the  contract  price  to  the  extent  the  same 
was  rendered  thereby  less  valuable  than  contracted  for,  unless 
defendant  being  advised  in  the  premises,  knowing  the  material 
facts,  accepted  the  buildings  as  a  performance  of  the  contracts, 
or  settled  therefor  as  herein  defined  and  qualified.1 
i  Voris,  J.,  in  Wilhelm    r.  Colohan,  Summit  Co.  Com.    Pleas. 

Sec.  1597.     Same — Acts  showing  knowledge  of  departure  from 
contract. 

The  fact  that  the  defendant  had  bills  rendered  from  time  to 
time  to  him,  and  was  present  as  the  work  progressed,  paid  money 
from  time  to  time,  went  into  possession  of  said  house  and  barn, 
the  knowledge  he  had  of  and  concerning  the  same,  what  he  said 
and  did  concerning  the  character  of  the  work  and  material,  are 
circumstances  from  which  the  jury  may  infer  whether  he  had 
or  had  not  information  as  to  the  modifications  from  the  contract, 
character  of  the  work,  extras,  material,  quality  and  price  thereof, 
and  whether  he  did  or  did  not  assent  to,  or  accept  the  same,  or 
settle  therefor.1 
i  Voris,  J.,  in  Wilhelm   v.  Colohan,  Summit  Co.  Com.  Pleas. 

Sec.  1598.     Same — Settlement  without  fraud  or  mistake. 

The  jury  is  instructed  that  if  the  parties  got  together  and 
fully  settled  the  matters  growing  out  of  the  building  transac- 
tions, the  same  would  conclusively  bind  the  parties,  in  the  ab- 
sence of  fraud  or  mistake.  But  if  you  find  that  the  defendant 
acted  with  reasonable  prudence,  and  in  good  faith,  and  relied 
upon  the  representations  of.  the  plaintiffs  and  was  deceived 
thereby,  and  by  reason  thereof  agreed  upon  a  settlement  he 
would  otherwise  not  have  made,  he  would  not  be  bound  thereby. 
If  the  defendant  acted  in  good  faith  and  not  knowing  and 
having  no  knowledge  of  any  deception,  he  would  be  entitled  to 
rely  upon  the  representations  of  plaintiffs  made  to  him  in 
making  settlement. 

Tf  you  find  that  a  settlement  was  actually  entered  into  by 
said  parties  and  as  part  thereof  plaintiffs  promised  the  defend- 


1316  INSTRUCTIONS  TO   JURY. 

ant  that  if  said  work  had  not  been  in  fact  done  and  performed 
in  accordance  with  the  representations  and  said  contracts,  that 
plaintiffs  would  on  request  of  defendant  return  to  said  build- 
ings and  do  all  things  required,  in  order  to  make  the  work  as 
represented  by  plaintiffs,  and  as  required  by  said  contracts, 
then  it  would  be  obligatory  upon  defendant  to  make  such  request 
within  a  reasonable  time,  and  what  would  be  a  reasonable  time 
we  leave  for  you  to  say  from  the  evidence  submitted  to  you, 
before  defendant  would  be  entitled  to  a  reduction  for  failure  to 
return  to  said  buildings  and  do  all  things  required  in  order  to 
make  the  work  as  represented  by  plaintiffs,  etc. 

But  if  you  find  that  the  representations  by  plaintiffs  were  false 
and  untrue  as  to  the  state  of  said  work  and  material,  that  in 
substantial  particulars  the  work  had  not  been  performed  in 
accordance  with  the  terms  of  said  contracts,  that  the  said  extras 
so  as  aforesaid  charged  for  were  estimated  both  in  quantity  and 
value  greatly  in  excess  of  the  amount  actually  done,  or  of  the 
value  of  that  which  was  done,  and  that  the  defendant  relied 
upon  such  representations  and  promises,  and  not  knowing  to 
the  contrary,  and  defendant  thereafter  requested  the  plaintiffs 
to  return  to  said  work  and  complete  the  performance  thereof, 
as  required  by  said  contracts,  and  the  plaintiffs  neglected, 
and  ever  since  have  neglected  so  to  do,  or  you  find  that  the 
parties  did  not  settle  as  herein  defined,  the  promise  of  the  defend- 
ant to  pay  said  balance  would  not  be  binding  on  him.1 
i  Voris,  J.,  in  Wilhelm  v.  Colohan,  Summit  Co.  Com.  Pleas. 

Sec.  1599.     Contract  as  to  extras. 

That  you  may  determine  the  matters  at  issue  between  the 
parties,  you  will  look  into  the  evidence  and  find  what  work  and 
material  the  written  contract  entered  into  for  the  construction 
of  the  building  required  to  be  done.  After  you  have  ascertained 
that,  then  you  will  inquire  whether  or  not  the  plaintiff  did 
anything  at  the  request  of  the  defendant  towards  the  construc- 
tion and  completion  of  the  building,  other  than  that  agreed  to 
be  done  in  the  written  contract.    If  you  find  that  work  was  done 


BUILDING    CONTRACTS.  1317 

other  than  that  or  outside  of  that  provided  for  in  the  written 
contract,  then  you  must  ascertain  what  it  was  reasonably  worth. 
Any  substantial  violation  or  departure  in  the  construction  of 
the  building  from  that  provided  for  in  the  terms  of  the  written 
contract,  if  made  at  the  request  of  the  plaintiff  and  which  mad'' 
the  completion  of  the  work  more  expensive  than  that  provided 
for  in  the  written  contraet,  then  that  would  constitute  such 
extras  as  would  entitle  the  plaintiff  to  recover  therefor  to  the 
extent  of  the  reasonable  value  of  the  extra  work  and  material 
so  supplied  at  the  request  of  the  defendant.  If  you  find  that 
this  extra  work  was  done  by  the  plaintiff  at  the  request  of  the 
defendant  and  that  there  was  no  special  or  other  contract,  it 
should  be  paid  therefor,  you  are  instructed  that  the  law  implies 
a  contract  on  the  part  of  the  plaintiff  that  he  will  pay  the 
defendant  such  an  amount  as  the  work  is  reasonably  worth.1 
JVoris,  J.,  in  Willielm  v.  Colohan,  Summit  Co.  Com.  Pleas. 

Sec.  1600.     Substantial  performance  of  contract. 

Before  the  defendant  can  recover  upon  this  cause  of  action 
the  full  amount  of  its  claim,  it  must  establish  by  a  preponderance 
of  the  evidence  that  the  defendant  has  substantially  performed 
said  contract  according  to  its  terms,  and  that,  notwithstanding 
such  performance,  the  architect  has  fraudulently,  or  unreason- 
ably refused  to  issue  the  final  certificate  therefor.  However,  if 
the  defendant  has  substantially  performed  on  its  part  the  terms 
of  said  contract,  and  only  slight  omissions  or  inadvertences  have 
occurred,  or  exist,  where  the  defendant  has  made  an  honest  effort 
to  perform,  and  has  not  willfully  omitted  the  performance  of 
the  terms  of  said  contract,  and,  further,  if  the  architect  fraudu- 
lently or  unreasonably  refused  to  issue  the  certificate  as  required 
by  the  contract,  the  defendant  is  entitled  to  recover  the  amount 
or  balance  due  on  the  contraet,  less  such  an  amount  as  will 
compensate  the  plaintiff  for  the  loss  suffered  by  reason  of  such 
slight  omissions  and  inadvertences,  if  nny.  But  if  the  omissions 
or  inadvertences',  if  any,  are  not  slight,  but  are  of  a  substantia] 
character,  then  you  are  justified  in  finding  that  the  contract  was 


1318  INSTRUCTIONS   TO   JURY. 

not  substantially  performed  by  the  defendant,  and  that  it  is 
not  entitled  to  recover  the  balance  of  the  contract  price,  for 
defendant  in  order  to  recover  on  its  contract  must  show  sub- 
stantial performance  on  its  part,  and  this  rule  applies  to  the 
contract  in  question,  as  well  as  any  other  contract.1 

i  The  F.  &  R.  Lazarus  &  Co.  v.  The  Bryant  Bros.  Art  Glass  Co.,  Franklin 
County  Court  of  Com.   Pleas,  Rogers,  J. 

Sec.  1601.     Extras — Whether  contract  express  or  implied  or 
work  voluntarily  done. 

The  plaintiff  claims,  in  addition  to  the  balance  due  on  the 

contract,  that  he  is  entitled  to  $ for  extras  finished  after 

the  original  contract  was  entered  into,  an  itemization  of  which 
extras  claimed  is  attached  to  the  petition.  The  court  instructs 
you  that  these  items  of  extras,  and  each  one  of  them,  are  based 
upon  an  alleged  agreement  therefor.  However,  it  is  not  neces- 
sary that  the  plaintiff  and  defendants  should  expressly  agree 
that  the  items  of  work  as  claimed  by  the  plaintiff  should  be 
performed  or  that  they  would  pay  any  specific  amount  therefor. 
But,  the  agreement  may  be  implied  from  all  the  facts  and 
circumstances  surrounding  the  relations  of  the  parties,  both  as 
to  the  performance  of  the  work  and  the  price  to  be  paid  there- 
for. Whether  or  not  there  were  agreements,  either  express  or 
implied,  with  regard  to  the  alleged  extras  or  changes,  or  any  of 
them,  is  a  matter  for  your  determination  from  the  evidence 
under  the  charge  of  the  court.  An  express  agreement  arises 
from  the  express  language  used  showing  an  agreement.  An 
implied  agreement  arises  from  the  facts  and  circumstances 
showing  that  by  tacit  understanding  between  the  parties  an 
agreement  was  intended.  As  to  such  items  for  extras,  if  any, 
as  show  an  agreement  between  the  parties  therefor,  you  will 
allow  to  the  plaintiff  the  reasonable  value,  as  shown  by  the 
evidence,  for  such  extras,  if  any.  But  if  as  to  any  or  all  the 
said  items  for  extras,  the  facts  and  circumstances  show  no 
agreement,  either  express  or  implied,  therefor,  it  will  be  your 
duty  to  disallow  any  or  all  such  items,  as  the  case  may  be. 


BUILDING    CONTRACTS.  1319 

The  defendants  admit  that  they  are  indebted  to  the  plaintiff 

for  the  sum  of  $ for  enlarging  flues  and  placing  furnace 

stacks  in  the  house.     The  plaintiff's  claim  is  that  the  $ was 

not  for  enlarging  flues  and  placing  furnace  stacks,  but  was  for 
furnace  pipes  in  the  house. 

Therefore,  you  will  determine  from  the  whole  evidence 
whether  or  not  the  plaintiff  is  entitled  to  be  paid  for  any  of 
the  items  of  extras  set  up  in  his  second  cause  of  action.  If  you 
find  by  a  preponderance  of  the  evidence  that  the  plaintiff  is 
entitled  to  any  of  them,  you  will  determine  the  amount  to  which 
he  is  entitled  and  include  such  amount  in  your  verdict.     If  you 

find  he  is  not  entitled  to  anything  except  the  $ for  enlarging 

flues  and  placing   furnace  stacks,   you  will   merely  allow  that 
amount  as  a  part  of  your  verdict. 

If  you  determine  that  the  plaintiff  had  no  contract  with  the 
defendants,  either  express  or  implied,  from  all  the  facts  and 
circumstances  in  the  case,  with  regard  to  the  alleged  items  for 
extras,  or  any  of  such  items,  but  that  the  plaintiff  voluntarily 
did  the  extra  work  or  any  part  of  it  without  any  orders  from 
the  defendants,  or  either  of  them,  or,  if  you  find  that  changes 
were  made  in  the  house,  which,  by  mutual  arrangement  between 
the  parties,  either  express  or  implied,  were  not  to  be  charged 
against  the  defendants  as  extras,  you  will  not  allow  any  extras 
for  such  items  to  the  plaintiff,  even  though  he  may  have  made 
the  house  better  by  reason  of  extra  material  furnished  or  labor 
performed  in  the  construction  of  the  house.  For  the  matter  of 
extras,  as  heretofore  stated,  was  a  matter  of  agreement  between 
the  parties  either  by  reason  of  an  express  understanding  between 
them  or  arising  from  such  facts  and  circumstances  as  will  imply 
an  agreement  between  them,  to  perform  the  extra  work  and  to 
receive  payment  therefor,  and  the  plaintiff  would  have  no  right 
to  volunteer  to  furnish  additional  material  or  better  material 
or  to  do  extra  labor  upon  the  house  without  some  agreement, 
either  express  or  implied,  to  be  paid  therefor,  and  then  charge 
the  defendants  for  such  material  or  labor  or  both,  as  the  case 
may  be.     In  other  words,  if  he  made  the  house  better  than  the 


1320  INSTRUCTIONS   TO   JURY. 

original  contract  provided  for  without  any  agreement,  either 
express  or  implied,  between  the  parties,  he  has  no  right  to 
recover  for  such  extra  work.  However,  if  as  to  some  of  the 
items  he  had  an  understanding  or  agreement,  either  express  or 
implied,  with  the  defendants,  and  as  to  other  items  he  did  not 
have  an  understanding,  either  express  or  implied,  that  he  should 
do  the  extra  work  and  be  paid  therefor,  as  to  those  items  wherein 
he  had  an  understanding  or  agreement,  you  will  make  allowances 
to  the  plaintiff  for  the  amount  to  which  he  is  entitled,  and  as 
to  those  wherein  there  was  no  understanding  or  agreement,  you 
will  not  make  any  allowance.1 
i  Stolz  v.  Grasser,  et  al.,  Court  of  Com.  PL,  Franklin  Co.,  Kogers,  J. 


CHAPTER   LXXXIV. 
BURGLARY. 


SEC. 

SEC. 

SEC. 

1614.     C« 

smplete       instructions       to 

1602. 

Burglary  and  larceny. 

jury    in    charge    of    bur- 

1603. 

Burglary — Degree   of   force. 

glary  of  storehouse — Em- 

1604. 

Burglary  of  chicken  or  hen- 

bracing: 

house. 

1. 

Burden. 

1605. 

Burglary   of   dwelling   house. 

2. 

Presumption       of       inno- 

1606. 

Maliciously  breaking  and  en- 

cence. 

tering. 

3. 

Reasonable   doubt. 

1607. 

Breaking  and  entering. 

4. 

Credibility    of    witnesses. 

1608. 

Burglary  of  inhabited  dwell- 

5. 

Accomplice  —  Testimony 

ing. 

of. 

1609. 

Must  be  in  night  time. 

6. 

Alibi. 

1610. 

Intent   to   steal. 

7. 

Circumstantial    evidence. 

1611. 

Intent  to  steal  from  railroad 

8. 

Possession  of  stolen  prop- 

car. 

erty. 

1612. 

Burglary    of    railroad    car — 

0. 

The  statute. 

Proof     of     incorporation 

10. 

Night   season. 

not  necessary. 

11. 

Maliciously  breaking. 

1613. 

Entrv  into  car. 

Sec.  1602.     Burglary  and  larceny — Force  necessary  in. 

As  to  the  force  necessary  to  constitute  a  breaking,  it  may  be 
the  lifting  of  a  latch,  making  a  hole  in  a  wall,  descending  the 
chimney,  picking,  turning,  or  opening  a  lock  with  a  false  key 
or  other  instrument;  lifting  a  latch  or  other  fastening,1  remov- 
ing a  pane  of  glass;  pulling  up  or  down  an  unfastened  sash; 
removing  the  fastening  of  a  window  by  inserting  the  hand 
through  a  broken  pane;  pushing  up  a  window  which  moves 
on  hinges  and  so  fastened  by  a  wedge,  and  other  like  acts.  It 
has  also  been  held  by  the  highest  court  of  this  state  that:  "The 
force  necessary  to  push  open  a  closed  but  unfastened  transom 
that  swings  horizontally  on  hinges  over  an  outer  door  of  a  dwell- 
ing  is   sufficient   to   constitute   a   breaking   under  our   statutes, 

which  requires  a  forcible  breaking."2 

1321 


1322  INSTRUCTIONS  TO  JURY. 

Then  as  a  matter  of  law  to  constitute  a  burglary  there  must 
be  a  forcible  3  breaking  which  must  precede  the  entry,4  but  it  is 
not  necessary  that  there  should  be  any  destruction  of  a  building, 
or  any  destruction  of  the  parts  of  the  building.  If  you  find 
from  the  evidence  that  the  doors  of  the  car  were  closed,  and  that 
the  fastenings  of  the  door  of  the  car  were  removed,  and  the  door 
pushed  or  forced  open,  that  would  be  sufficient  to  constitute  a 
breaking  under  our  statute.5 

i  81  Iowa,  93. 

2  Timmons  v.  State,   34  0.   S.  426. 

s  The  constructive   breaking  of  the   common   law  is  sufficient.     Ducher   v. 
State,   18   O.  308. 

4  Wine  v.  State,  25   0.  S.  69. 

5  Nye,   J.,    in   State   v.   Kemp,    et   al.,   Lorain    Co.   Com.    Pleas.     Entering 

dwelling   by   a   trick   has   been    held   burglary.     State    v.    Henry,    9 
Iredell,  463. 

Sec.  1603.     Burglary — Degree  of  force. 

"If  the  jury  are  satisfied  beyond  a  reasonable  doubt  as  to  all 
the  other  elements  necessary  to  constitute  a  burglary  except  a 
breaking,  and  find  that  the  transom  was  closed  on  the  night  in 
question,  though  not  fastened,  and  that  the  defendant  used 
sufficient  force  to  push  it  from  its  place,  so  that  it  would  swing 
open,  that  would  be  a  sufficient  breaking  in  law,  and,  under  the 
circumstances,  if  satisfied  beyond  a  reasonable  doubt,  their 
verdict  should  be  guilty."  * 
iTimmojis  v.  State,  34  O.  S.  426. 

Sec.  1604.     Burglary  of  a  chicken  or  henhouse. 

The  jury  is  instructed  that  a  hen  house  in  law  is  considered 
to  be  within  the  statute  making  it  burglary  to  maliciously  and 
forcibly  break  and  enter  any  "other  building"  than  those 
specifically  named  in  the  statute,  provided  the  henhouse  is  a 
structure  of  some  permanence.  It  need  not  be  absolutely  perma- 
nent, nor  of  such  character  of  structure  as  that  its  removal 
would  damage  the  real  estate.  A  mere  temporary  movable 
chicken  coop  is  not  such  a  structure  as  comes  within  the  statute 


BURGLARY.  1323 

prescribing  the  crime  of  burglary.1  Before  you  can  find  the 
defendant,  guilty  you  must  find   that   defendants   maliciously 
and  forcibly  broke  and  entered  a  chicken  or  hen  house  of  some 
permanency,  with  intent  t"  steal  property  of  any  value, 
i  General_Code,  sec.  12438.     Bailey  v.    State,  7  C.  C.  (X.S.)  28,  16  0.  C.  D. 

375;    affd.   69   0.   S.   551.     A    poultry  house.     State  v.  Buechler,  57 

O.  S.  95. 


Sec.  1605.     Burglary  of  dwelling'  house. 

The  statute  provides  that  whoever  in  the  night  season, 
maliciously  and  forcibly  breaks  and  enters  an  [uninhabited] 
[inhabited]  dwelling  house  with  intent  to  steal  property  of  any 
value,  or  with  intent  to  commit  a  felony,  is  guilty  of  burglary.1 

The  elements  of  this  crime,  and  the  several  facts,  the  existence 
of  which  the  jury  must  find  before  the  defendant  can  be  convicted 
by  your  verdict  are  that  the  defendant  did  in  the  night  season, 

on  or  about  ,  19 — ,  within  the  county  of  and  state  of 

Ohio,  maliciously  and  forcibly  break  and  enter  an  uninhabited 
dwelling.  The  jury  must  also  be  satisfied  that  the  defendant  did 
maliciously  and  forcibly  break  and  enter  the  dwelling  house  with 
the  intent  to  steal  the  property  then  and  there  located  or  being 
in  the  dwelling  house  which  is  of  some  value. 

i  Code,   sec.    12438.     See   full   charge   in  Burglary.     State   v.   Walshenberg, 
7  N.  P.    (X.S.)    219. 

Sec.  1606.     Maliciously  breaking  and  entering. 

To  maliciously  break  and  enter  a  dwelling  house  is  to  do  so 
with  a  wicked  or  mischievous  intention  of  mind ;  to  be  possessed 
and  controlled  by  a  depraved  inclination  towards  mischief;  with 
an  intention  to  do  an  act  which  is  wrong,  without  just  cause  or 
excuse,  being  and  constituting  a  wrongful  disregard  for  the 
rights  and  safety  of  others. 

If  you  find  that  the  defendant  did  break  and  enter  the  dwelling 

house  of  as  charged  in  the  indictment,  the  jury  may  be 

justified  in  the  presumption  that  it  was  done  maliciously. 


1324  INSTRUCTIONS   TO   JURY. 

Sec.  1607.     Breaking  and  entering. 

The  court  will  instruct  the  jury  concerning  the  legal  meaning 
of  the  terms  to  break  and  enter  the  dwelling  house.  No  par- 
ticular degree  or  amount  of  force  is  required  to  constitute  a 
breaking  within  the  meaning  of  the  statute.  The  law  is  satisfied 
with  any  force,  however  slight,  that  may  be  used  in  entering  the 
dwelling  house,  the  opening  of  a  door,  whether  locked  or  un- 
locked, the  mere  lifting  of  a  latch,  or  breaking  a  lock,  or  using 
a  key  in  the  lock,  or  any  kind  of  breaking  necessary  to  gain 
entrance  may  be  considered  a  sufficient  breaking  within  the 
law.  The  breaking  must  not  only  be  forcibly,  but  it  must  precede 
the  entry. 

[In  order  to  find  that  there  was  a  breaking,  you  must  find 
that  a  door  was  opened  or  a  window  was  raised  through  which 
defendant  entered.  If  the  door  was  opened,  and  defendant 
merely  passed  through  an  open  door,  it  does  not  constitute  a 
breaking  within  the  law.]  1 

1.  The  entry.  There  must  be  an  entering  of  the  person  or 
some  part  of  the  body  of  the  person  charged  with  the  crime,  in 
order  that  he  may  be  guilty  of  burglary. 

Before  the  defendant  may  be  found  guilty  of  burglary  of  an 

[uninhabited  or  inhabited]    dwelling  house  in  the  night  season 

as   charged,   the   jury  must   find  that   he   did  maliciously   and 

forcibly  break  and  enter,  in  the  manner  as  explained  to  you,  the 

dwelling  house  of on  or  about . 

i  Timmons  v.  State,  34  O.  S.  426;  Ducher  v.  State,  18  O.  30S.  Pushing 
open  a  closed,  unfastened  transom.  Timmons  v.  State,  supra.  Code, 
sec.  12438.  Box  car  partially  open.  State  v.  Long,  5  O.  D.  (N.P.) 
617.  If  car  is  fastened  by  a  cleat  or  hasp,  and  sealed,  there  is  a 
breaking.     State  v.  Long,  5  O.  D.    (N.P.)    617. 

Sec.  1608.     Burglary  of  inhabited  dwelling  house. 

In  order  to  find  the  defendant  guilty,  the  jury  must  be 
satisfied  from  the  evidence  that  the  defendant  did  maliciously 
break  and  enter  an  inhabited  dwelling  house,  that  is,  you  must 
find  that  the  house  as  alleged  in  the  indictment  was  a  dwelling 
house,  that  is,  a  house  used  for  the  purpose  of  a  home,  or  a  place 


BURGLARY.  1325 

to  live,  and  that  it  was  at  the  time  of  the  breaking  and  entering, 
inhabited,  that  it  was  occupied  by  persons  living  in  it,  who  were 
occupying  it  as  a  home. 

Sec.  1609.     Must  be  in  night  time. 

It  is  necessary  that  both  the  breaking  and  the  entering  should 
be  done  in  the  night  time.  It  is  night  in  the  sense  of  the  law 
when  there  is  not  daylight  enough  left  or  begun  to  discern  a 
man's  face.  Again  night  is  denned  as  being:  "That  space  of 
time  during  which  the  sun  is  below  the  horizon  of  the  earth, 
during  which  by  its  light  the  countenance  of  a  man  can  not  be 
discerned.''  Night  season  consists  of  the  period  of  time  from 
the  termination  of  daylight  in  the  evening  to  the  earliest  dawu 
in  the  morning. 

Then  you  are  instructed  that  the  night  season  is  that  period 

of  time  after  the  sun  goes  down  at  evening  and  before  it  rises 

in  the  morning,  when  it  is  so  dark  that  a  person's  face  can  not 

be  discerned  by  the  daylight.     It  was  necessary,  therefore,  that 

the  offense  must  have  been  committed  in  the  night  season  to 

commit  a  burglary.1 

i  Nye,  J.,  in  State  v.  Kemp,  Lorain  Co.  Com.  PI.  State  v.  Walshenberg, 
7  X.  P.  219;  State  v.  Gundersons  (Wash.),  21  Am.  Ann.  Cas.  350. 
Nighttime  by  common  law  begins  when  daylight  ends,  or  when  the 
countenance  ceases  to  be  reasonably  discernible,  and  ends  at  earliest 
dawn,  or  as  soon  as  the  countenance  becomes  discernible,  (lark's 
Cr.  Law,  237;  People  r.  Griffin,  1!)  Cal.  578;  State  r.  Bancroft,  10 
N.  H.  105.  "The  jury  must  determine  this  question  independently 
of  a  capricious  test."  Whart.  Cr.  PI.  and  IV.,  sec.  1612;  Lewis  v. 
State,  16  Conn.  32.  The  nighttime  may  be  shown  by  circumstan- 
tial evidence.     State  v.  Bancroft,  10  X.  II.  105. 

Sec.  1610.     Intent  to  steal. 

It  is  not  necessary  to  constitute  burglary,  that  the  accused 
should  actually  have  stolen  any  property;  it  is  sufficient  if  the 
breaking  and  entering  was  made  with  the  specifie  intent  to  steal. 

The  term  steal,  means  in  legal  contemplation,  the  wrongful 
and  fraudulent  taking  of  properly  of  another,  of  some  intrinsic 
or  substantial  value,  without  his  assent,  and  with  the  intent  to 


1326  INSTRUCTIONS   TO   JURY. 

deprive  the  owner  thereof  permanently.1      Direct  evidence  is 
not  necessary  to  prove  intent ;    it  may  be  proved  by  facts  and 
circumstances.     The  intent  may  be  inferred  or  presumed  from 
the  unlawful  act  of  breakim    and  entering, 
i  State  v.  Walshejiberg,  7  N,  P.  219. 

Sec.  1611.     Intent  to  steal  from  railroad  car. 

The  fourth  thing  that  is  necessary  to  constitute  the  offense  of 
burglary  is  that  the  breaking  and  entering  must  have  been  done 
with  an  intent  to  steal  the  personal  property  of  some  value  of 
the  C.  C.  C.  &  St.  L.  R.  R.  Co.,  situated  in  said  car.  It  is  not 
necessary  that  anything  be  actually  stolen.  The  offense  is 
complete  under  the  statute  if  the  defendant  broke  and  entered 
the  car  named  in  the  indictment,  in  the  night,  forcibly  and 
maliciously  with  the  intent  to  steal  property  of  some  value 
situated  in  the  car  of  the  said  railroad  company.  But  direct 
and  positive  testimony  is  not  necessary  to  prove  the  intent.  It 
may  be  proved  by  facts  and  circumstances.  If  you  find  from 
the  evidence  that  the  property  was  stolen  from  the  car  by  the 
defendants,  you  may  consider  that  fact  in  determining  with  what 
intent  the  defendants  entered  the  car,  if  you  find  they  entered  it.1 

i  Nye,  J.,  in  State  v.  Kemp.     The  property  intended  to  be  stolen  must  be 
property  subject  of  larceny.     State  v.  Lymus,  26  O.  S.  400. 

Sec.  1612.     Burglary  of  railroad  car — Proof  of  incorporation 
not  necessary. 

"It  is  not  necessary  for  the  state  to  prove  the  articles  of 
association  or  charter  of  the  railway  corporation,  but  it  is 
sufficient  to  prove  by  reputation  that  there  was,  at  the  time  when 
the  crime  is  alleged  to  have  been  committed,  a  corporation  known 
by  that  name,  operating  such  road,  and  carrying  goods,  stock, 
and  passengers  for  hire  in  its  cars  running  along  said  company's; 
road.  A  de  facto  existence  of  the  corporation  is  only  necessary 
to  be  shown."  1 

i  Burke  v.  The  State,  34  0.  S.  79.     It  would  have  been  necessary  before 
the  code.     Id. 


BURGLARY.  1327 

Sec.  1613.     Entry  into  car. 

The  jury  is  instructed  that  it  would  not  be  necessary  that  the 
whole  person  of  the  burglar  *  *  *  go  within  the  car.  It 
would  be  sufficient  entering  the  car  if  he  reached  a  hand  into  the 
car,  and  it  would  be  a  sufficient  entry  in  the  car  if  he  thrust  a 
stick,  a  fork,  or  a  hook  into  the  car  with  intent  to  steal  property 
contained  therein.  That  would  be  a  sufficient  entry,  providing 
you  find  the  other  things  necessary  to  constitute  the  crime  of 
burglary.1 

i  Nye.  J.,  in  State  v.  Kemp,  Lorain  Co.  Com.  PI.  R.  S.,  sec.  6835.  Both 
the  entry  and  breaking  are  essential,  though  they  need  not  be  simul- 
taneous.    Malone's  Cr.  Briefs,  186,  1  Hale,  551. 

Sec.  1614.     Complete  instructions  to  jury  in  charge  of  burglary 
of  storehouse  embracing: 

1.  Burden. 

2.  Presumption  of  innocence. 

3.  Reasonable  doiibt. 

4.  Credibility  of  ivitnesses. 

5.  Accomplice,  testimony  of. 

6.  Alibi. 

7.  Circumstantial  evidence. 

8.  Possession  of  stolen  property. 

9.  The  statute. 

10.  Night  season. 

11.  Maliciously  breaking. 

You  have  heard  the  evidence  and  the  argument  of  counsel 
and  it  now  becomes  the  duty  of  the  court  to  give  you  such  instruc- 
tions concerning  the  law  of  this  case,  as  will  guide  you  in  your 
duties  in  determining  the  questions  of  fact  which  you  will  draw 
from  the  evidence  which  has  been  introduced  before  you. 

In  plain  terms  the  defendant  is  charged  with  committing  the 
crime  of  burglary  of  a  storehouse.  The  indictment  has  been 
read  to  you  once  or  twice  and  T  may  simply  now  state  that  it 

charges  that  F.  W.  on  the ,  19 — ,  in  Franklin  county,  and 

in  the  night  season,  entered  a  storehouse  of  The  E.  C.  Company, 


1328  INSTRUCTIONS   TO   JURY. 

situate  in  Franklin  county,  and  that  he  unlawfully,  maliciously 
and  forcibly  broke  and  entered  that  storehouse  with  the  intent 
to  steal  the  personal  property  of  The  E.  C.  Company  then 
located  in  that  storehouse;  and  that  he  did  unlawfully  steal  a 
certain  lady's  blue  coat  described  more  particularly  in  the 
indictment,  of  the  value  of  eleven  dollars ;  and  that  he  did  steal, 
take  and  carry  same  away. 

The  defendant  has  entered  a  plea  of  not  guilty.  That  is  he 
denies  each  and  all  of  the  essential  elements  charged  in  the 
indictment  which  constitute  the  crime  of  burglary. 

1.  Burden,  That  imposes  upon  the  state  the  burden  of  prov- 
ing all  of  those  essential  elements  to  your  satisfaction  and 
beyond  a  reasonable  doubt,  which  is  the  degree  and  measure  of 
proof  necessary  to  be  applied  by  you  in  your  consideration  and 
in  your  verdict. 

2.  Presumption.  The  law  presumes,  however,  in  all  criminal 
cases  that  in  entering  upon  the  consideration  of  the  evidence  in 
this  case  that  the  defendant  stands  innocent  of  any  crime,  or 
of  the  crime  charged  against  him ;  that  is  in  entering  upon  the 
consideration  of  the  evidence  you  are  to  start  out  upon  the 
theory  and  the  presumption  of  law  that  he  is  innocent  and  to 
carry  that  in  your  minds  until  such  time  in  the  consideration  of 
the  evidence,  as  you  shall  be  convinced  therefrom  beyond  a 
reasonable  doubt  that  the  defendant  is  guilty.  That  is  all  there 
is  in  that  matter  of  presumption  of  innocence.  It  is  not  an  idle 
matter  but  it  is  a  rule  binding  upon  you  in  the  consideration 
of  the  case. 

3.  Reasonable  doubt.  Proof  beyond  a  reasonable  doubt  may 
be  defined  variously  and  at  great  length,  but  in  simple  terms 
it  means  nothing  more  than  a  reasonable  uncertainty  existing 
in  the  minds  of  jurors  as  to  the  guilt  of  the  accused,  after  having 
considered  all  of  the  evidence  offered  in  the  case.  It  is  not  a 
mere  speculative,  captious  doubt  which  might  or  might  not  be 
excited  in  the  mind  of  a  juror  or  jurors  for  the  mere  purpose  of 
shirking  the  performance  of  a  disagreeable  duty;  but  on  the 
contrary  it  is  a  substantial  doubt ;  you  must  be  convinced  from 


BURGLARY.  1329 

all  of  the  facts  and  circumstances  introduced  in  evidence  beyond 
a  reasonable  doubt  that  the  defendant  is  not  guilty  before  you 
can  acquit  him. 

4.  Credibility  of  witnesses.  The  credibility  of  the  witnesses  is 
within  your  sole  province  to  determine  and  all  that  you  need 
do  in  that  regard  is  to  use  your  common  sense  in  applying  such 
tests  as  each  and  all  of  you  may  wish  to  do  or  may  believe  that 
you  ought  to  apply  in  the  consideration  of  the  evidence  in  this 
case,  as  jurors  you  are  nothing  more  than  men  as  on  the  outside, 
and  you  will  apply  the  same  tests  as  jurors  as  you  would  apply 
to  facts  elsewhere.  You  may  consider  the  interest  that  any  one 
might  have  in  testifying  one  way  or  the  other,  if  any  such 
interest  appears. 

The  constitution  of  the  state  now  provides  that  the  failure 
of  a  defendant  to  testify  may  be  considered  by  the  court  and 

jury. 

5.  Accomplice— Testimony  of.  It  has  long  been  an  established 
rule  of  practice  in  criminal  procedure  that  the  court  must  give 
some  kind  of  precautionary  instructions  to  the  jury  in  regard  to 
the  testimony  of  an  accomplice,  one  charged  with  the  same  crime 
or  with  having  taken  some  part  in  the  crime  charged,  and 
we  have  heard  the  testimony  of  M.  P.,  who  is  jointly 
indicted  in  this  crime  with  the  defendant.  Now,  the  mere  fact 
that  she  is  jointly  indicted  with  this  defendant  does  not  dis- 
qualify her  as  a  witness;  she  is  just  as  competent  to  testify  as 
a  witness  as  any  other  person,  even  though  she  is  indicted.  The 
turpitude  of  her  conduct,  if  there  is  to  be  attribute;  1  any  such 
to  her  conduct,  does  not  disqualify  her,  but  the  credit  to  be 
given  her  testimony,  considering  her  joint  indictment  and  all 
the  facts  and  circumstances  appearing  in  the  evidence,  >  a 
matter  entirely  within  your  judgment  and  discretion. 

Finally  in  respect  to  the  testimony  of  M.  P.  the  court  charges 
the  jury  that  you  should  be  cautious  and  prudent  in  the  exercise 
of  your  judgment  and  discretion  in  considering  the  weight  and 
eredit  to  be  given  the  testimony  of  M.  P.,  thai  matter  being 
entirely  within  your  discretion  it  being  your  duty  to  consider 


1330  INSTRUCTIONS   TO    JURY. 

her  testimony  in  the  light  of  all  of  the  other  testimony  and  facts; 
adduced  in  the  evidence  in  the  case. 

6.  Alibi.  There  is  evidence  here  offered  by  the  defendant  on 
the  claim  of  defense  of  what  is  termed  in  law  as  an  alibi ;  that 
is,  the  claim  is  that  the  defendant  was  not  at  the  storehouse 
of  the  E.-C.  Company  on  the  night  of  the  sixth  day  of 
November,  1912,  but  that  he  was  elsewhere  as  is  claimed  in  the 
evidence.  The  court  instructs  you  that  such  a  defense  is  a 
proper  one  and  just  as  legitimate  as  any  other  kind  of  a  defense, 
and  that  it  is  your  duty  to  consider  all  the  testimony  offered 
which  relates  to  such  defense,  but  in  considering  the  same 
the  court  instructs  you  that  you  are  to  keep  in  mind  and  apply 
the  degree  and  measure  of  proof  required  in  criminal  cases. 
That  is  you  will  consider  the  claim  of  alibi,  together  with  any 
and  all  other  evidence,  and  if  upon  the  whole  evidence — that 
relating  to  the  alibi  as  well  as  that  relating  to  the  body  of  the 
crime — you  should  not  have  an  abiding  conviction  of  the  guilt 
of  the  defendant  then  it  would  be  your  duty  to  acquit  the  defend- 
ant. But  on  the  other  hand  if  you  should  feel  satisfied  beyond 
a  reasonable  doubt  of  the  guilt  of  the  defendant,  considering 
the  claim  of  alibi,  together  with  all  of  the  other  evidence  offered 
in  the  case,  then  it  would  be  your  duty  under  such  circumstances 
to  find  the  defendant  guilty.  In  other  words,  plainly  and  simply, 
there  is  no  different  degree  or  measure  of  proof  applying  to  this 
defense  of  alibi  but  the  one  measure  of  proof  applies — that  is  the 
reasonable  doubt  rule. 

7.  Circumstantial  evidence.  It  is  also  necessary  for  the  court 
to  give  you  some  precautionary  instructions  concerning  what  is 
known  and  designated  in  law  as  circumstantial  evidence.  Now 
that  means  nothing  more  nor  less,  gentlemen,  than  proof  of  facts 
from  which  inferences  may  be  drawn,  having  a  legitimate  bearing 
upon  the  main  facts  involved  in  this  case ;  or  circumstantial 
evidence  is  the  proof  of  facts  and  circumstances  which  does  not 
directly  prove  the  essential  elements  of  a  crime  but  is  on  the 
contrary  the  proof  of  other  facts  and  circumstances  from  which 
inferences  may  be  drawn  tending  to  prove  the  elements  of  the 
crime.     Circumstantial  evidence,  which  is  evidence  by  way  of 


BURGLARY.  1331 

deduction  or  inference,  is  as  competent  as  any  other,  but  it  must 
be  of  such  character  as  to  exclude  from  your  minds  all  reasonable 
doubt  of  the  guilt  of  the  accused;  that  is  if  in  considering  the 
circumstantial  evidence  you  should  be  able  to  draw  such 
inferences  therefrom  as  would  convince  you  beyond  all  reason- 
able doubt  that  the  defendant  was  guilty  of  the  crime  charged 
then  it  would  be  your  duty  to  so  find  him  guilty.  But  if  in  con- 
sidering the  circumstantial  evidence,  together  with  all  the  other 
evidence  you  should  not  have  in  your  minds  an  abiding  con- 
viction of  the  guilt  of  the  accused,  then  it  would  be  your  duty 
to  acquit  him. 

8.  Possession  of  stolen  property.  There  is  another  matter  of 
evidence  concerning  which  the  court  must  give  you  some  pre- 
cautionary instructions,  as  to  3rour  duty  in  considering  the  same. 
It  is  in  regard  to  the  alleged  possession  of  the  stolen  property. 
That  is  in  this  case  there  is  some  evidence  to  the  effect  that  the 
defendant  had  possession  of  the  property  stolen.  Of  course  it 
is  for  you  to  determine  whether  he  did  have  any  such  possession. 
Now  the  law  is  that  evidence  of  the  alleged  possession  of  sin] en 
goods  by  an  accused  and  the  giving  of  a  false  account  of  such 
possession  is  competent  to  be  considered  by  the  jury  in  con- 
nection with  all  the  other  facts  and  circumstances  bearing  on 
the  guilt  or  innocence  of  the  defendant  and  the  jury  may  draw 
such  inferences  therefrom  as  it  may  deem  warranted  under  all 
the  conditions,  considering  all  of  the  evidence,  that  which  relates 
to  the  body  of  the  crime,  as  well  as  that  relating  to  the  claim  of 
alibi.  By  body  of  the  crime  I  mean  the  actual  breaking  and 
entering  into  the  storehouse  and  stealing  the  property. 

In  considering  such  testimony  concerning  the  alleged  burglary 
of  the  storehouse  and  the  stealing  of  the  property  you  should 
consider  further  whether  the  alleged  circumstances  have  been 
corroborated  by  other  criminative  circumstances  or  whether  it 
stands  alone  without  corroborating  facts.  "Whatever  be  the 
nature  of  such  evidence,  the  jury  on  the  whole  must  be  convinced 
of  the  guilt  of  the  accused  beyond  a  reasonable  doubt  upon  con- 
sideration of  all  the  evidence  before  you  can  find  the  defendant 
guilty.1 


1332  INSTRUCTIONS   TO   JURY. 

9.  The  statute.  Code  §  12438.  Those  are  all  instructions  so 
far,  gentlemen,  concerning  your  duty  in  the  consideration  of  the 
evidence  in  this  case,  and  I  now  come  to  the  body  of  the  crime, 
so  called,  and  the  law  of  this  state  as  embodied  in  the  statute, 
which  provides  that  whoever  in  the  night  season  maliciously  and 
forcibly  breaks  and  enters  a  storehouse  with  intent  to  steal 
property  of  any  value  is  guilty  of  burglary.  Code  §  12438. 
You  will  notice  from  a  reading  of  that  statute  that  there  are 
four  or  five  elements  in  the  crime  of  burglary ;  that  is  it  must 
be  done  in  the  night  season,  the  breaking  must  be  an  actual 
breaking,  and  there  must  be  an  actual  entering  of  some  of  the 
body,  or  of  some  part  of  the  body,  and  there  must  be  an  intent 
to  steal  the  property. 

10.  Night  season.  We  all  know  what  the  night  season  means. 
It  means  in  court  just  what  it  means  anywhere  else.  It  means 
in  law  what  is  ordinarily  understood  by  persons  generally ;  that 
is  it  is  that  period  of  time  after  the  sun  goes  down  in  the  evening 
and  before  it  rises  in  the  morning  when  it  is  so  dark  that  a 
person's  face  can  not  be  discovered  by  the  daylight. 

11.  Maliciously  breaking.  Malice  in  law  does  not  mean  what 
we  might  ordinarily  comprehend  by  that  term  in  every  day 
parlance.  It  does  not  mean  necessarily  ill  will  or  personal  spite 
but  it  is  a  term  used  in  law  rather  as  indicative  of  a  mind  which 
is  fatally  bent  on  mischief,  or  which  is  so  depraved  as  to  be 
devoid  of  all  social  or  legal  obligations,  one  that  is  so  perverted 
as  to  have  no  regard  or  respect  for  the  rights  of  others.  To 
commit  such  acts  maliciously  is  to  do  them  with  wicked,  mischiev- 
ous intention  of  mind ;  that  is  an  intention  to  do  an  act  or  wrong 
without  regard  to  the  rights  of  others;  it  is  indicative  of  a 
wicked  and  depraved  mind  and  devoid  of  all  social  and  moral 
duties. 

To  forcibly  break  and  enter  means  that  some  force  must  be 
used  to  break  and  enter  and  the  law  is  satisfied  with  any  force, 
however  slight  that  may  be  used  in  opening  a  door  or  window  or 
other  opening  of  a  building.2 

iMethard  v.  State,  10  0.  S.  303,  3  C.  C.  551,  17  C.  C.  486. 
2  State  v.  Wilson,   Franklin  County,  Kinkead,  J., 


CHAPTER   LXXXV. 
COMMON  CARRIERS  OF  FREIGHT. 


SEC.  SEC. 

1615.  Common  carrier  defined.  1622. 

1616.  Common    law    rule   of    liabil- 

ity of  common  carrier.  1623. 

1617.  Act    of    God    defined — Inevi- 

table accident. 

1618.  Liability  of  express  company        1624. 

for  loss  of  horse  in 
shipping.  1625. 

1.  Liability  of  common  car- 

rier in  absence  of  special       1626. 
contract. 

2.  Prima  facie  case  made  by       1627. 

delivery  of  horse. 

3.  Death  of  horse  from  nat-       1628. 

ural  causes  during  trans- 
portation   is    an    act    of        1620. 
God. 

4.  Duty    of    company    when       1630. 

horse  falls  in  stall. 

5.  Liability   if  company   im- 
properly treats  horse.  1631. 

6.  Existence  of  written  con- 

tract fixing  rights  and 
liabilities. 

7.  Same — Contract,  if  made,        1632. 

when  to  be  construed  ac- 
cording to  laws  of  an- 
other state.  1033. 

1619.  Limiting    liability    by    special 

contract  —  Burden  of 
proof. 

1620.  Limiting    common-law    liabil-        l(i:?4. 

ity — Burden  upon  car- 
rier to  show  loss  within 
an   exception.  1635. 

1621.  Not   an    insurer   as   to   time — 

Delay  caused  by  un- 
avoidable  accident. 


Duty  of  carrier  as  to  deliv- 
ery of  goods. 

Non-delivery  of  property — 
Presumptive  evidence  of 
loss   by   negligence. 

Duty  of  express  companies 
as  to   delivery  of  goods. 

Carrier  of  goods — Rule  as  to 
limitation    of    liability. 

Liability  by  contract  for  loss 
on   connecting  lines. 

Duty  with  regard  to  bag- 
gage— Delivery. 

Liability  in  absence  of  spe- 
cial contract. 

Contract  for  transportation 
of  vegetables. 

Delay  in  delivery  of  goods — 
Exempting  liability  in 
bill  of  lading. 

Bill  of  lading — Effect  of,  be- 
tween carrier  and  ship- 
per —  Conditions  in  — 
Waiver. 

Railroad  company — Duty  to 
furnish  cars  for  trans- 
portation. 

Same  continued  —  Duty  of 
company  to  place  cars  in 
suitable  place  for  un- 
loading. 

Same  continued — -Duty  of 
company  to  provide  side- 
tracks. 

Same  continued — May  make 
reasonable  rules  concern- 
ing car  service. 

1333 


1334  INSTRUCTIONS  TO   JURY. 

SEC.  SEC. 

1636.  Same    continued — Reasonable-       1638.  Carrier    bound    to    use    ordi- 

ness    of    rules — How  de-  nary    care    in    shipment 

termined.  of   livestock   when    there 

1637.  Same       continued  —  Recovery  is  delay. 

for  car  service — Effect  of  1639.  Cold     weather — Not     act     of 
rules   regulating   charges  God. 

for    car    service    beyond  1640.  Baggage — What  constitutes, 

the    period    allowed    for  1641.  Baggage — Liability      of      car- 
unloading,  rier,  that  of  an  insurer. 

Sec.  1615.     Common  carrier  defined. 

A  common  carrier  is  one  that  undertakes,  for  hire  or  reward, 
to  carry,  or  cause  to  be  carried,  goods  for  all  persons,  indiffer- 
ently, who  may  choose  to  employ  him,  from  one  place  to  another. 

Sec.  1616.     Common  law  rule  of  liability  of  common  carrier. 

A  common  carrier  is  responsible  for  the  safe  transportation 
and  delivery  of  goods  received  by  him  for  carriage,  and  can  only 
justify  or  excuse  a  default  when  occasioned  by  the  act  of  God, 
or  the  public  enemy ;  he  is  not  only  responsible  for  his  own  acts 
of  malfeasance,  misfeasance  and  negligence  in  the  course  of  his 
employment,  but  he  is  also  regarded  as  an  insurer  against  all 
loss  or  damages  which  may  happen  to  goods  whilst  in  his  charge, 
for  the  purpose  of  his  employment,  though  occasioned  by 
unavoidable  accident,  or  by  any  casualty  whatever,  except  only 
as  just  mentioned,  and  the  burden  of  proof  is  thrown  upon  the 
carrier  in  bringing  any  particular  case  within  the  exception. 

For,  in  the  absence  of  proof,  the  loss  itself  raises  the  pre- 
sumption of  negligence  on  the  part  of  the  carrier.  The  act  of 
the  public  enemy  is  not  claimed  as  an  excuse  for  the  non- 
performance of  duty;  the  available  excuse  for  the  nondelivery 
of  the  goods  to  the  consignee  there  must  be  the  act  of  God.1 

i  From  B.  &  O.  R.  R.  Co.  v.  Crawford.     Affirmed  by  Circuit  Court.     Settled 
in  Supreme  Court,  No.  2236.     May,  J. 

Sec.  1617.     Act  of  God  defined — Inevitable  accident. 

By  the  term  "act  of  God"  is  meant  something  superhuman 
— something  beyond   the  power  of  man   to   foresee   or  guard 


COMMON    CARRIERS   OF   FREIGHT.  1335 

against.  It  means  inevitable  accidents,  something  that  happens 
without  the  intervention  of  man.  Where  one  is  pursuing  a 
lawful  vocation  in  a  lawful  manner,  and  something  occurs  which 
no  ordinary  skill  or  precaution  could  foresee  or  prevent,  and  as  a 
consequence  the  accident  takes  place,  this  is  called  inevitable 
accident. 

A  loss  by  fire  is  not  a  loss  by  act  of  God.  It  means  those 
events  and  accidents  which  proceed  from  natural  causes,  and  can 
not  be  anticipated  and  guarded  against  or  resisted;  such  as 
unexampled  freshets,  violent  storms,  lightning  and  frosts.  For 
losses  occurring  by  any  of  these  means,  a  common  carrier  is  not 
liable,  provided  he  has  not  been  guilty  of  any  want  of  ordinary 
and  reasonable  care  to  guard  against  such  loss. 

Whether  in  this  case  such  care  and  diligence  were  or  were  not 
used  by  the  defendant,  and  whether  the  loss  resulted  therefrom, 
are  questions  for  you  to  determine  in  view  of  all  facts  and  circum- 
stances proved  on  the  trial.  The  burden  of  showing  the  use  of 
ordinary  care  to  prevent  the  loss  is  upon  the  defendant;  this 
showing  must  be  a  preponderance  of  the  evidence;  that  is.  the 
evidence  in  its  favor  must  outweigh  in  your  minds  through 
weight  and  importance  all  other  evidence  to  the  contrary.  Other- 
wise you  should  find  for  plaintiff.  Speaking  in  other  words  as 
to  ordinary  care,  if  you  find  by  a  preponderance  of  the  evidence 
that  the  defendant  used  such  care  and  diligence  to  prevent  the 
loss  of  the  goods  entrusted  to  it  as  ordinarily  prudent  men 
usually  exercise  toward  their  own  property  under  like  circum- 
stances, your  verdict  should  be  for  the  defendant;  but  if  the 
evidence  in  this  direction  just  balances  by  your  consideration 
with  the  evidence  to  the  contrary,  or  if  you  find  from  such  pre- 
ponderance of  evidence  that  the  defendant  did  not  use  such  care 
and  diligence,  and  the  loss  resulted  therefrom,  your  verdict 
should  be  for  plaintiff.1 

i  From  B.  &  O.  R.  II.  Co.  r.  Crawford.     Affirmed  by  Circuit  Court.     Settled 
in  Supreme  Court,  No.  2230.     May,  J. 


1336  INSTRUCTIONS   TO   JURY. 

Sec.  1618.    Liability  of  express  company  for  loss  of  horse  in 
shipping. 

1.  Liability  of  common  carrier  in  absence  of  special  contract. 

2.  Prima  facie  case  made  by  delivery  of  horse. 

3.  Death  of  horse-  from  natural  causes  during  transportation 

is  act  of  God. 

4.  Duty  of  company  when  horse  falls  in  stall. 

5.  Liability  if  company  improperly  treats  horse. 

6.  Livestock  contracts — Existence  of  written  contract  fixing 

rig 'its  and  liabilities. 

7.  Same — Contract,  if  made,  when  to  be  construed  accord- 

ing to  laws  of  another  state. 

1.  Liability  of  common  carrier  when  no  special  contract.  The 
ultimate  question  of  fact  which  you  have  to  determine  is  this: 
Is  the  defendant  liable  to  the  plaintiff  for  the  loss  of  the  horse 
in  question,  and,  if  so,  what  is  the  extent  of  such  liability  ? 

The  court  instructs  you  that  the  defendant  is  what  is  known 
as  a  common  carrier.  A  common  carrier  is  one  who  receives 
property  to  be  transported  from  one  place  to  another,  and,  if 
there  is  no  special  contract  limiting  its  liability,  is  required  by 
law  to  deliver  it  in  safety  at  the  point  to  which  it  is  shipped, 
unless  it  be  lost  by  the  act  of  God  or  the  public  enemy.  By  act 
of  God  is  meant  such  unavoidable  accident  as  can  not  be  pre- 
vented by  human  care,  skill  or  foresight,  but  results  from 
natural  causes,  such  as  lightning,  tempests,  floods  and  so  forth. 
By  the  public  enemy  is  meant  those  who  are  opposing  or  are 
in  arms  against  the  government. 

2.  Prima  facie  case  made  by  delivery  of  horse.  Therefore,  if 
there  was  no  special  contract  limiting  the  defendant's  liability, 
the  plaintiff  has  made  out  a  prima  facie  case  when  it  proves  the 
delivery  of  the  horse  to  the  defendant  to  be  carried  for  a  con- 
sideration, and  failure  to  deliver  him  at  Fulton,  New  York,  and 
the  company  must  then  show  by  producing  evidence  of  equal 
weight  or  countervailing  force  that  the  failure  to  deliver  the 
horse  was  due  to  an  act  of  God  or  to  the  public  enemy,  to  relieve 
itself  from  liability. 


COMMON    CARRIERS    OF    FREIGHT.  1337 

3.  Death  of  horse  from  natural  causes  during  transportation  is 
act  of  God.  If  the  horse  died  from  natural  causes,  from  disease, 
while  bring  transported,  then  this  would  be  an  act  of  God,  and 
the  defendant  will  not  be  liable  for  the  loss  of  the  horse,  nor 
would  defendant  be  liable,  if  the  cause  of  the  horse's  death  was 
solely  due  to  his  peculiar  nature  or  propensities,  unless  the  loss 
could  have  been  prevented  by  the  exercise  of  reasonable  fore- 
sight, vigilance  and  care,  on  the  part  of  defendant,  for  defendant 
is  not  an  insurer  against  death  arising  from  the  condition  of 
the  horse  himself.  If  the  horse  was  seized  by  the  disease  known 
as  congestion  of  the  lungs,  and  not  by  reason  of  any  fault  or 
negligence  of  the  defendant,  died  from  that  disease,  his  death 
not  being  due  wholly  or  in  part  to  the  defendant's  negligence, 
this  would  be  a  matter  beyond  the  control  of  the  defendant,  and 
in  such  case  that  defendant  will  not  be  liable  for  the  loss  and 
your  verdict  should  be  for  defendant. 

4.  Duty  of  company  when  horse  falls  in  stall.  If  however,  the 
horse  may  have  thrown  himself  in  the  stall  without  negligence 
on  the  part  of  the  defendant,  it  would  be  the  duty  of  the  agents 
of  the  company  to  exercise  reasonable  and  ordinary  care  to 
relieve  him  from  such  condition  or  situation,  and  if  he  died,  as 
contended,  from  thus  being  cast  in  the  stall,  and  from  being 
allowed  to  remain  in  that  situation  for  such  a  time  as  caused 
his  death,  and  you  further  find  that  by  the  exercise  of  reasonable 
care  on  the  part  of  the  company's  agents,  the  horse  could  have 
been  liberated  from  his  situation  and  thereby  his  death  pre- 
vented, then  the  defendant  would  be  liable  if  it  did  not  exercise 
such  care. 

5.  Liability  of  company  if  it  improperly  treated  horse. 
Furthermore,  it*  after  he  was  laken  from  the  stall,  you  find  that 
with  proper  treatment  his  life  could  have  been  saved,  and  that 
he  was  improperly  treated  and  died  as  a  result  of  such  treatment, 
this  would  render  the  defendant  company  liable,  in  the  absence 
of  a  contract  limiting  its  liability,  because  the  defendant  will  be 
liable  for  the  loss  of  the  horse,  if  he  was  lost  by  reason  of  negli- 
gence, that  is,  by  reason  of  not  exercising  reasonable  care,  on 


1338  INSTRUCTIONS   TO    JURY. 

the  part  of  the  defendant's  agents  in  charge  of  the  horse.  And 
the  extent  of  its  liability,  if  there  was  no  special  contract  as 
hereinafter  considered,  would  be  the  value  of  the  horse  with 
interest  from  the  time  it  should  have  been  delivered  to  its  desti- 
nation, but  not  exceeding  the  amount  claimed  in  the  petition 

with  interest  as  before  mentioned  from ,  19 — . 

But  if  there  was  no  negligence  on  the  part  of  defendant 
resulting  in  the  horse  being  cast  in  the  stall,  nor  in  relieving  him 
from  his  situation  after  being  cast  in  the  stall,  nor  in  the  treat- 
ment of  the  horse  thereafter,  the  defendant  would  not  be  liable, 
and  your  verdict  should  be  for  the  defendant. 

6.  Livestock   contract— Existence   of   written   contract   fixing 
rights  and  liabilities  for  the  jury.    The  defendant's  contention  is 
that  there  was  a  written  contract  between  the  parties  which 
fixed  the  rights  and  liabilities  of  the  parties  respecting  the  ship- 
ment of  this  horse  and  the  jury  must  determine  whether  or  not 
these   parties   entered  into  such   contract,   duplicate   copies  of 
which  have  been  introduced  in  evidence  as  Exhibits  1  and  2,  and 
termed  "Limited  liability  livestock  contract."    If  you  find  that 
the  parties  did  not  enter  into  said  contract  with  respect  to  the 
shipment  of  the  horse,  then  the  case  stands  for  your  determina- 
tion upon  the  issues  made  by  the  petition  and  the  first  defense 
of  the  answer,  under  the  evidence  applicable  thereto  and  the 
charge   of  the  court,   and   you  need  not   consider  further  the 
matters  set  forth  in  the  last  four  defenses  of  said  answer.     But 
if  you  find  that  the  parties  entered  into  the  alleged  livestock 
contract,  and  according  to  the  terms   of  which  the  horse  was 
shipped,   then   the   issues   made  by   the   petition   and   the   first 
defense  of  the  answer  as  well  as  the  issues  made  upon  the  other 
four  defenses  and  the   reply  are  to  be  considered  by  you  in 
determining  defendant's  liability,  or  non-liability  for  the  loss 
of  said  horse,  for  if  the  horse  was  shipped  pursuant  to  said  live- 
stock  contract,    the    rights    and   liabilities   of    the    parties    are 
governed  by  the  terms  of  said  contract  and  it  will  control  in  the 
rendition  of  your  verdict. 

On  the  question  as  to  whether  or  not  the  parties  entered  into 
the  alleged  livestock  contract  and  the  horse  was  received  and 


COMMON    CARRIERS   OF   FREIGHT.  1339 

shipped  under  the  terms  of  said  contract,  you  will  examine  into 
all  the  facts  and  circumstances  surrounding  the  parties  prior  to 
and  at  the  time  of  and  subsequent  to  the  transaction  relating  to 
the  shipment  of  said  horse,  including  what  was  said  and  done  by 
the  parties.  You  will  consider  whether  or  not  the  alleged  con- 
tract was  signed,  and,  if  so,  by  whom,  when,  where,  and  why  it 
was  signed,  and  the  purpose  and  object  of  signing  it.  Was  it 
with  the  intention  of  establishing  contractual  relations  between 
the  parties  concerning  this  horse,  or  for  some  other  purpose  or 
intention,  and,  if  signed  in  duplicate  what  was  done  with  each 
copy,  the  circumstances  of  their  disposition,  or  possession  by  one 
or  both  of  the  parties,  as  the  case  may  be ;  you  will  also  consider 
on  the  question  of  the  contract  becoming  a  binding  agreement 
between  the  parties  or  otherwise,  whether  or  not  the  parties  had 
had  prior  transactions  of  a  like  character  to  this  one,  whether 
or  not  the  plaintiff  was  familiar  with  the  defendant's  method  of 
transacting  this  sort  of  business,  and  of  contracting  for  such 
shipments,  whether,  on  the  one  hand,  there  was  any  concealment, 
deception,  fraud,  or  unfair  conduct,  or  undue  advantage  taken 
on  the  part  of  defendant,  whereby  plaintiff  was  induced  to 
enter  into  the  contract,  if  it  did  so ;  or,  on  the  other  hand,  there 
was  no  concealment,  fraud,  deception,  unfair  conduct,  or  advan- 
tage taken  by  defendant  to  induce  such  contract,  but  that  the 
contract  was  freely  and  fairly  made  between  the  parties; 
whether,  on  the  one  hand,  the  plaintiff,  if  it  executed  the  con- 
tract, in  order  to  have  its  horse  shipped,  had  no  other  alternative 
except  by  signing  the  contract  in  question;  or,  on  the  other 
hand,  it  may  have  had  its  horse  shipped  by  paying  a  reasonable 
price  therefor  to  defendant  without  having  entered  into  s;ii<l 
•  ••ml  caet,  or  by  entering  into  a  different  contract.  Applying 
these  and  other  tests  appearing  from  the  facts  and  circumstances 
adduced  in  evidence,  if  you  find  that  the  alleged  contract  repre- 
sented by  Exhibits  1  and  2  was  signed  in  duplicate  by  the  parties 
with  the  intention  of  the  parties  to  the  transaction  to  make  an 
agreemenl  concerning  the  shipment  of  this  horse  and  winch 
agri  ement  was  dictated  only  by  their  mutual  and  according  wills 


1340  INSTRUCTIONS   TO   JURY. 

and  was  not  induced  by  fraud,  concealment  or  deception,  but  was 
fairly  made,  you  will  be  justified  in  finding  and  it  will  be  your 
duty  to  find  that  the  alleged  livestock  contract  was  the  contract 
pursuant  to  which  said  horse  was  shipped,  and  will  be  upheld  as 
a  just  and  reasonable  method  of  fixing  a  due  proportion  between 
the  amount  for  which  the  defendant  became  responsible  and  the 
express  charge  it  was  to  receive,  and  also  of  protecting  itself 
against  extravagant  valuations  in  case  of  loss;  and  a  recovery 
for  loss  or  damage  will  be  limited  to  the  amount  of  valuation 
named  in  the  contract,  even  if  the  damage  or  loss  occurred 
through  the  negligence  of  the  defendant  or  its  servants. 

But  if  you  find  that  the  plaintiff  did  not  sign  the  contract,  or, 
if  it  signed  the  contract,  there  was  no  mutuality  of  assent  to 
this  live  stock  contract,  as  the  contract  between  the  parties  in 
relation  to  this  horse,  either  because  of  concealment  or  deception 
or  fraud  or  undue  advantage  by  defendant  or  want  of  voluntary 
assent  by  plaintiff,  so  that  the  contract  was  not  fairly  made, 
you  will  be  justified  in  finding  and  it  will  be  your  duty  to  find 
that  such  contract  was  not  the  contract  between  said  parties. 

To  constitute  the  alleged  livestock  contract  a  binding  contract 
between  the  parties,  it  was  not  essential  that  it  be  signed  at  the 
time  of  or  before  the  shipment  was  made.  It  is  sufficient,  if 
it  were  contemplated  between  the  parties  at  the  time  of  such 
shipment  that  a  written  contract  should  be  entered  into  under 
which  the  horse  was  to  be  shipped,  and  if  in  pursuance  of  such 
contemplated  arrangement,  the  written  contract  was  signed  and 
delivered  as  the  agreement  under  which  the  horse  was  shipped, 
it  became  the  binding  contract  for  such  shipment,  although 
executed  after  the  horse  was  shipped. 

If  you  find  that  the  alleged  livestock  contract  represented  by 
Exhibits  Nos.  1  and  2  was  the  contract  pursuant  to  which  the 
horse  was  shipped,  the  fact,  if  it  be  a  fact,  that  the  plaintiff 
failed  to  acquaint  itself  with  the  contents  of  said  contract  will 
not  excuse  the  plaintiff  from  being  bound  by  its  terms,  for  it  was 
incumbent  upon  the  plaintiff  to  acquaint  itself  with  the  contents 
of  such  contract,  if  it  was  executed  by  the  plaintiff,  and,  although 


COMMON    CARRIERS   OF   FREIGHT.  1341 

it  failed  so  to  do,  it  will  be  held  chargeable  with  the  knowledge 
of  such  contract,  although  the  circumstance  of  not  reading  or 
familiarizing  itself  with  the  contents  of  said  alleged  livestock 
contract  will  be  taken  into  consideration  by  you  with  all  the 
other  circumstances  in  determining  whether  or  not  it  was  the 
contract  under  which  said  horse  was  shipped. 

7.  Same — Contract,  if  made,  to  be  construed  according  to  I  airs 
of  another  state.  If  you  find  that  the  alleged  livestock  contract 
was  the  contract  under  which  said  horse  was  shipped,  then  the 
court  instructs  you  that  by  its  terms  any  question  arising  under 
said  contract  was  and  is  to  be  determined  by  the  law  of  the  state 
of  New  York,  and  certain  decisions  of  the  state  of  New  York 
having  been  given  in  evidence  to  the  jury,  it  is  the  duty  of  this 
court  to  construe  those  decisions  and  deduce  from  them  the 
rules  of  law  which  they  establish,  and  in  that  view  of  the  case 
said  contract  provided  that  in  consideration  of  the  alternative 
rates  offered  the  shipper  upon  the  basis  of  the  different  values 
to  be  placed  by  the  shipper  upon  said  horse,  and  the  declaration 

by  the  shipper  of  the  value  of  $ placed  upon  said  horse  in 

consideration  of  certain  rates  to  be  charged  for  shipping  him 
upon  that  basis,  it  was  agreed  that  the  express  company  should 
not  be  liable  for  the  conduct  or  acts  of  the  animal  to  himself  as 
therein  specified,  nor  for  loss  arising  from  the  condition  of  the 
animal  himself,  or  which  resulted  from  his  nature  or  propensities 
which  risks  were  assumed  by  the  shipper,  the  plaintiff  in 
this  case.  And  the  shipper  released  and  discharged  the  express 
company  from  all  liability  from  delay,  injury  to,  or  loss  of 
said  animal  from  any  cause  whatever,  unless  such  delay,  injury 
or  loss  was  caused  by  the  negligence  of  the  agents  or  employes 
of  the  express  company,  and  in  such  event  the  express  company 
was  to  become  liable  only  to  the  extent  of  actual  damage,  which 
should  in  no  event  exceed  the  valuation  therein  declared  by  the 
shipp  r,  to-wit,  the  sum  of  $ . 

The  court  instructs  you  that  under  the  law  of  the  State  of 
New  York  the  defendant  had  the  right  to  make  such  a  contract 
with  the  terms  as  herein  above  specified  with  the  plaintiff,  and 


1342  INSTRUCTIONS   TO   JURY. 

if  made,  the  same  was  binding  upon  the  parties  thereto,  and  if 
the  loss  or  damage  to  the  horse  arose  solely  from  the  condition 
of  the  animal  itself,  or  from  its  nature  and  propensities,  and  not 
from  any  negligence  on  the  part  of  the  defendant,  the  risk  of 
such  loss  and  damage  were  assumed  by  the  plaintiff  and  it 
released  and  discharged  the  defendant  from  all  liability  for  such 
injury  to  or  loss  of  said  animal  from  said  cause;  and  if  the 
injury  or  loss  to  said  animal  was  caused  by  the  negligence  of  the 
agents  or  employes  of  the  express  company,  in  that  event  the 
express  company  was  only  liable  to  the  extent  of  the  actual 
damage,  based  upon  the  valuation  of  the  horse  fixed  by  the  con- 
tract, to-wit,  the  sum  of  $ with  interest  thereon  from  the 

,  19-. 

Furthermore,  if  you  determine  that  the  alleged  livestock 
contract  represented  by  Exhibits  Nos.  1  and  2  was  the  contract 
which  bound  the  parties  in  the  shipment  of  this  horse,  there  was 
a  provision  therein  to  the  effect  that  in  no  event  should  the 
express  company  be  liable  for  any  loss  or  damage  unless  the 
plaintiff  should,  within  thirty  days  after  such  loss  or  damage 
accrued,  give  notice  in  writing  of  its  claim  therefor  to  said 
defendant,  and  that  there  should  be  no  waiver  of  the  aforesaid 
time  within  which  said  claim  should  be  made,  unless  the  defend- 
ant expressly  agreed  in  writing  to  waive  the  same.  Therefore,  if 
you  find  the  aforesaid  livestock  contract  was  the  contract  under 
which  the  horse  was  shipped  and  that  the  written  notice  required 
by  said  contract  to  be  given  to  the  defendant  of  loss  or  damage 
was  under  all  the  circumstances  reasonable,  and  that  such  notice 
was  not  given  by  the  plaintiff  to  the  defendant  within  thirty 
days  after  such  loss  or'  damage  accrued,  and  that  the  defendant 
did  not  expressly  agree  in  writing  to  waive  such  notice,  then 
the  plaintiff  can  not  recover  in  this  case  and  your  verdict  must 
be  for  the  defendant. 

If  you  find  that  the  alleged  live  stock  contract  was  not  the 
contract  under  which  said  horse  was  shipped,  then  the  court 
instructs  you,  as  heretofore  stated  in  the  fore  part  of  this  charge, 
that  you   will   determine  the  liability   or  non-liability   of   the 


COMMON    CARRIERS   OF   FREIGHT.  1343 

defendant  for  the  loss  of  said  horse,  independent  and  aside  from 
said  contract,  according  to  the  instructions  heretofore  given  you 
with  regard  to  such  liability  or  non-liability  in  case  there  was  no 
written  contract  entered  into  between  the  parties.1 

i  McLaughlin  in  Bros.  v.  American  Express  Co.,  Court  of  Com.  Pleas, 
Franklin  County,  Ohio,  Rogers,  J. 

A  judgment  on  a  previous  verdict  was  reversed  hy  the  circuit  court  which 
was  affirmed  by  the  supreme  court.  McLaughlin  Bros.  v.  American 
Express  Company,  80  0.  S.  704.  The  foregoing  instructions  were 
prepared  in  accordance  with  the  rules  announced  in  the  judg- 
ment of  the  circuit  court.  This  has  since  been  affirmed  by  the  su- 
preme court. 

Sec.  1619.     Limiting-  liability  by  special  contract — Burden  of 
proof. 

"A  carrier  may  restrict  or  limit  the  amount  of  its  liability  by 
a  special  contract  accepted  on  the  part  of  the  owner  of  the 
baggage ;  and  this  may  be  done  by  notices  brought  home  to  the 
owner  of  the  baggage  before  or  at  the  delivery  to  the  carrier, 
if  assented  to  by  the  owner. ' ' 

"The  onus  of  proving  any  qualification  of  the  liability  of  the 
defendant  as  a  carrier  rests  upon  it.  The  notice,  to  be  of  any 
force,  must  amount  to  actual  notice.  At  all  events  to  exonerate 
the  defendant  as  a  carrier  from  its  general  liability  it  must  be 
shown  at  least,  by  the  evidence,  that  the  plaintiff,  or  those  acting 
for  her,  assented  to  the  demands  of  the  notice  or,  with  a  knowl- 
edge of  it,  acquiesced  in  it  by  making  no  remonstrance." 

"And  in  determining  whether  or  not  the  conditions  and  limita- 
tions were  brought  to  the  notice  of  the  plaintiff  and  those  acting 
for  her,  you  will  look  to  all  the  evidence  in  the  case ;  as  to  the 
manner  of  the  delivery  of  the  ticket  and  the  check;  whether  any- 
thing was  said  or  done  calling  attention  to  them  or  not ;  whether 
they  were  not  read  at  the  time  of  or  before  the  receipt."  * 
i  Railroad  Co.  v.  Campbell,  36  0.  S.  647. 

Sec.  1620.     Limiting  common-law  liability — Burden  upon  car- 
rier to  show  loss  within  an  exception. 

You  are  instructed  that  while  a  common  carrier  is  permitted 
by  a  special  contract  made  with  the  owner  of  goods  entrusted 


1344  INSTRUCTIONS   TO    JURY. 

to  it  to  restrict  or  limit  its  common-law  liability  so  as  to  exon- 
erate it  from  losses  arising  from  causes  over  which  it  has  no 
control,  and  to  which  its  fault  or  negligence  in  no  way  contrib- 
uted, it  can  not  by  such  a  contract  relieve  itself  from  responsi- 
bility for  losses  caused  by  its  own  negligence  or  want  of  care  or 
skill,  and  the  burden  rests  upon  the  carrier  to  show  not  only 
a  loss  within  the  terms  of  the  exception,  but  also  that  proper 
care  and  skill  were  exercised  to  prevent  the  loss.1 

i  Graham   v.  Davis,  4  O.   S.   362;    Express  Co.   v.  Graham,  26  0.  S.   598: 
Express  Co.  v.  Bachman,  28  O.  S.   144. 

Sec.  1621.    Not  an  insurer  as  to  time — Delay  caused  by  un- 
avoidable accident. 

You  are  instructed  that  a  common  carrier  is  not  an  insurer  as 
to  time,  but  is  bound  to  transport  goods  to  its  destination  within 
a  reasonable  time ;  and  if  delay  is  caused  by  an  inevitable  acci- 
dent, the  carrier  is  not  responsible  for  any  loss  resulting,  if  it 
has  used  ordinary  care  under  the  circumstances.  Under  such 
circumstances  its  duty  is  to  use  all  reasonable  efforts  to  avoid 
all  unnecessary  damage  to  the  property  by  forwarding  it  to  its 
destination  by  other  means  of  conveyance,  or  in  some  other  way. 
If  the  goods  are  of  a  perishable  nature  and  it  is  unable  by  the 
exercise  of  ordinary  care  to  forward  it  to  its  place  of  destination 
in  time  to  avoid  a  total  loss,  it  may  sell  the  same  for  the  best 
obtainable  price.  If  a  total  loss  may  have  been  prevented  by 
sending  the  goods  over  another  route,  it  is  its  duty  to  do  so.1 
i  Express  Co.  v.  Smith,  33  O.  S.  511. 

Sec.  1622.     Duty  of  carrier  as  to  delivery  of  goods. 

The  jury  is  instructed  that  as  a  general  rule,  when  the  carrier 
has  done  all  that  the  law  requires  toward  effecting  a  delivery  of 
the  property,  but  is  unable  to  accomplish  it,  and  the  property 
is  so  necessarily  continued  in  its  possession,  its  obligation  be- 
comes that  of  a  depository  only.  He  is  no  longer  an  insurer  of 
the  property,  and  may  show  that  it  was  lost  without  its  fault  or 
negligence,  and  if  the  defendant  shows  by  a  preponderance  of 


COMMON    CARRIERS    OF    FREIGHT.  1345 

the  evidence  that  it  has  done  all  that  it  could  do  towards  deliv- 
ery of  the  goods,  and  that  they  were  lost  without  any  fault  on 
its  part,  it  is  not  liable.1 
i  Railroad   v.  O'Donnell,  49  O.  S.  406. 

Sec.  1623.     Nondelivery    of   property — Presumptive    evidence 
of  loss  by  negligence. 

Should  you  find  from  the  evidence  that  the  defendant  received 
the  property  to  be  transported  for  hire  as  charged  in  the  peti- 
tion, then  it  was  their  duty  to  cause  the  same  to  be  safely  carried 
to  the  place  of  destination  and  deliver  the  same  to  the  person 
to  whom  they  were  consigned,  and  the  fact,  should  you  so  find, 
that  these  goods  were  not  delivered  is  presumptive  evidence  of 
loss  by  negligence,  and  in  that  case  the  burden  of  proof  is  upon 
the  defendants  to  show  the  exercise  of  due  care  on  their  part,  for 
the  law  exacts  of  a  common  carrier  a  high  degree  of  care.  Yet 
if  you  find  from  the  evidence  that  the  defendant  exercised  rea- 
sonable care,  and  that  the  loss,  if  any,  was  occasioned  by  causes 
over  which  it  had  no  control,  and  not  from  its  own  neglect  or 
omission  of  duty,  your  verdict  must  be  for  the  defendant;  but 
if  you  should  fail  to  find  that  the  defendant  did  exercise  all 
reasonable  care,  or  that  the  loss,  if  any,  was  occasioned  by  causes 
over  which  it  had  control,  or  from  its  own  neglect  or  omission 
of  duty,  your  verdict  must  be  for  the  plaintiff.1 
i  Greene,  J.,   in   Stevenson  v.  Wells,  Fargo  &  Co. 

Sec.  1624.    Duty  of  express  companies  as  to  delivery  of  goods. 

The  undertaking  of  express  companies  is  to  make  delivery 
of  goods  entrusted  to  its  care  for  carriage  to  the  consignee  per 
sonally,  with  all  reasonable  dispatch;  and  to  this  obligation  they 
are  held  by  the  law  with  great  strictness.  If  there  is  delay 
because  of  some  inevitable  accident,  it  will  excuse  such  delay, 
but  the  carrier  must  make  delivery  as  soon  as  the  impedimenl 
to  the  transportation  of  the  property  is  removed,  or  can  reason- 
ably he  overcome.1 
^  Kailroad  V.  O'Donnell,  49  O.  S.  489. 


1346  INSTRUCTIONS   TO   JURY. 

Sec.  1625.     Carrier  of  goods — Rule  as  to  limitation  of  liability. 

"A  railroad  company  engaged  in  the  business  of  transporting 
live  stock  assumes  all  the  responsibilities  of  a  common  carrier. 
In  the  absence  of  any  special  contract  limiting  its  liability,  it 
insures  against  all  loss  except  that  caused  by  the  act  of  God  or 
the  public  enemy. 

"It  may  limit  its  liability  by   a  special  contract  with  the 
shipper  or  consignor  of  the  property,  but  such  special  contract 
can  never  relieve  the  railroad  company  from  liability  for  its 
own  negligence. ' ' x 
i  Kansas  City  R.  Co.  v.  Simpson,  30  Kan.  647. 

Sec.  1626.     Liability  by  contract  for  loss  on  connecting  lines. 

"A  railroad  company  may  become  liable  as  a  common  carrier 
by  contract  for  transportation  of  passengers  and  baggage  over 
other  railroads,  forming  with  their  own  a  continuous  line;  and 
where  they  do  so  contract,  their  liability  is  the  same  for  losses 
occasioned  by  negligence  as  fault  while  the  baggage  is  upon  such 
other  road  as  while  it  is  upon  their  own  road."  1 
i  Railroad  Co.  v.  Campbell,  36  0.  S.  647. 

Sec.  1627.    Duty  with  regard  to  baggage — Delivery,  etc. 

"When  a  railroad  company  takes  baggage  for  a  passenger, 
its  liability  is  of  the  highest  sort.  It  agrees  to  carry  the  bag- 
gage safely,  and  insures  against  all  sorts  of  risks,  except  the  act 
of  God  or  the  public  enemy.  But  when  the  baggage  is  landed 
it  is  the  duty  of  the  owner  to  call  immediately,  or  as  soon  as  the 
throng  and  hurry  incident  to  the  arrival  and  departure  of  trains 
has  subsided  and  get  his  property.  But  if  he  fails  to  thus  call, 
and  the  agent  of  the  railroad  company  takes  charge  of  it,  then 
the  responsibility  will  be  changed.  It  will  be  the  responsibility 
of  a  warehouseman  instead  of  that  of  a  common  carrier.  The 
liability  will  be  to  take  such  care  of  the  property  as  an  ordi- 
narily prudent  man  would  of  his  own  property  under  like 
circumstances.     All  the  defendant  is  required  to  do  is  to  take 


COMMON    CARRIERS   OF   FREIGHT.  1347 

ordinary  care  under  the  circumstances,  such  as  men  usually 
exercise  in  their  own  concerns.  The  defendant  is  not  liable  for 
the  theft  of  the  goods  unless  it  is  the  result  of  the  want  of  proper 
care. ' ' 1 

'  Penna.  Co.  v.  Miller  &  Co.,  35  O.  S.  541.  The  judgment  of  the  common 
pleas  court  in  the  case  from  which  the  above  is  taken  was  reversed 
by  the  supreme  court,  but  the  latter  say  in  their  opinion,  3.~>  O.  S.. 
p.  550,  with  reference  to  this  portion  of  the  charge,  that  "with  the 
general  rule  thus  stated  we  find  no  fault;  and  a  less  degree  of  care 
ought  not,  in  our  opinion,  to  be  allowed."  The  reversal  was  based 
upon  other  grounds 

Sec.  1628.    Liability  in  absence  of  special  contract. 

"In  the  absence  of  special  contract  limiting  the  liability  of 
the  defendant,  if  the  jury  find  that  it  is  liable  for  loss  of  plain- 
tiff's baggage,  you  will  assess  as  damages  the  value  of  the  trunk 
and  such  of  its  contents  as  you  find  was  the  wearing  apparel  of 
herself  or  her  child,  or  their  necessary  or  usual  appendages  or 
accompaniments  of  herself  and  child  as  travelers,  with  interest 
from  the  demand  to  the  first  day  of  the  present  term."  * 
i  Railroad  Co.  v.  Campbell,  36  O.  S.  647. 

Sec.  1629.     Contract  for  transportation  of  vegetables. 

If  the  defendant  agreed  with  the  plaintiffs  that  for  a  certain 
consideration  it  would  carry  a  carload  of  potatoes  for  them 
from  P.  to  R.,  and  if,  in  pursuance  of  such  agreement,  the  plain- 
tiffs delivered  the  potatoes  to  the  defendant  for  that  purpose, 
on  the day  of .  10 — ,  it  was  then  the  duty  of  the  defend- 
ant to  forward  them  to  the  place  of  delivery  within  a  reasonable 
time,  and  without  unnecessary  delay,  and  if  it  failed  to  do  so, 
and  the  plaintiffs  suffered  loss  or  damage  in  consequence  of  such 
unreasonable  and  unnecessary  delay,  then  the  defendant  would 
be  liable  for  sueh  loss  or  damage. 

Therefore,  if  the  jury  find  by  a.  preponderance  of  the  evidence 
that  the  defendant  agreed  with  the  plaintiffs  to  transport  a 
carload  of  potatoes  from  P.  to  R. ;  and  further  that  said  potatoes, 
under  said  contract,  were  delivered  to  the  defendant  for  ship- 


1348  INSTRUCTIONS   TO   JURY. 

ment ;  and  if  the  jury  further  find  that  through  the  negligence 
of  the  defendant  the  potatoes  did  not  arrive  at  their  destination 
within  a  reasonable  time  after  the  defendant  received  them,  and 
in  consequence  of  unreasonable  and  unnecessary  delay,  a  portion 
of  them  froze,  then  a  prima  facie  case  is  made  out  in  favor  of 
the  plaintiffs. 

If  the  delay  was  not  the  proximate  cause  of  the  freezing,  or, 
in  other  words,  if  the  potatoes  would  have  frozen  even  if  there 
had  been  no  delay  and  they  had  arrived  at  their  destination  in 
due  time,  then  the  defendant  would  not  be  liable.1 
i  DeWitt,  J.,  in  B.  &  O.  R.  R.  Co.  v.  Talbott,  S.  C.  No.  2718,  Erie  County. 
See  Hewitt  v.  C.  &  C.  R.  R.  Co.,  18  Am.  and  Eng.  R.  R.  Cas.  568,  where 
company    held    liable    for    loss    of    potatoes   by    freezing,    the    court 
holding  that  danger   from   cold   was   one   which   ordinary   foresight 
could  have  apprehended  and  guarded  against;   that  great  diligence 
and   dispatch   were    required    of   the   company   in   the   duty   of   for- 
warding these  perishable  articles,  and  if  they  were  exposed  to  the 
danger   which    injured   them   through   the   company's  negligence,    it 
is  responsible  for  the   damages.     See  also  Daniels  v.  Valentine,  23 
O.  S.  532;  Canfield  v.  B.  &  0.,  93  N.  Y.  532. 

Sec.  1630.  Delay  in  delivery  of  goods — Exempting  liability 
in  bill  of  lading. 

If  the  defendant  was  guilty  of  any  unreasonable  delay  in  the 
delivery  of  the  turkeys,  and  it  was  the  result  of  its  own  negli- 
gence or  want  of  care  and  diligence  in  that  behalf,  then  it  is 
liable  for  whatever  damages  the  plaintiff  thereby  sustained.  The 
defendant  being  a  common  carrier,  it  can  not,  by  its  bill  of  lading 
given  to  shippers,  or  in  any  other  way  exempt  itself  from  lia- 
bility for  loss  or  damage  arising  from  failing  to  deliver  the 
goods  shipped  within  a  reasonable  time,  or  at  the  time  stipulated 
by  it  for  delivery,  if  there  is  any  such  time,  if  the  failure  be  the 
result  of  its  own  negligence  or  that  of  its  agent. 

No  conditions  in  a  bill  of  lading  can  bind  the  shipper  unless 
where  it  be  averred  and  proven  by  the  carrier  that  the  shipper 
knew  of  such  conditions  and  assented  to  them  at  or  prior  to  the 
time  of  shipment,  and  such  assent  must  be  proven  by  the  carrier. 
The  law  will  not  presume  it;    and  whether  there  was  a  bill  of 


COMMON    CARRIERS    OF    FREIGHT.  1349 

lading  given  for  these  turkeys,  and  the  plaintiffs  knew  of  and 
assented  to  the  conditions,  is  a  question  for  your  determination, 
and  the  burden  is  on  the  defendant  to  prove  these  facts.1 

i  American  Express  Co.  v.  Hawk,  51  O.  S.  572.     Charge  affirmed  by  C.  C. 
&  S.  C. 

Sec.  1631.     Bill    of    lading — Effect    of    between    carrier    and 
shipper — Conditions  in — Waiver  of. 

If,  at  the  time  the  plaintiffs  delivered  the  potatoes  to  the 
defendant  for  shipment,  the  receiving  agent  at  P.  Station  signed 
a  bill  of  lading  and  gave  it  to  the  plaintiffs,  who  accepted  it  and 
carried  it  away  with  them,  such  bill  of  lading  would  have  all 
the  force  of  a  written  contract  between  the  parties,  although  it 
was  not  signed  by  the  plaintiffs,  and  if  it  contained  the  condi- 
tion above  mentioned,  then  no  right  of  action  could  accrue  to 
the  plaintiffs,  unless  they  presented  their  claim  for  damage 
within  ten  days  limitation.  This  condition,  however,  could  be 
waived  by  the  defendant.  If  the  plaintiffs,  exercising  reason- 
able diligence  in  the  premises,  were  unable  to  discover  and  ascer- 
tain their  loss  within  ten  days  from  the  time  of  the  delivery, 
or  could  not,  by  the  exercise  of  diligence,  determine  the  extent 
of  their  loss  and  damage  within  the  ten  days '  limit,  and  if,  after 
the  expiration  of  said  ten  days,  they  presented  their  claim  for 
damage  to  the  defendant's  agent,  having  authority  to  act  for  it, 
and  if,  at  the  rime  the  claim  was  presented  to  such  agent,  they 
had  knowledge  of  the  fact  that  the  time  specified  in  the  bill  of 
lading,  within  which  the  claim  could  be  presented  by  the  plain- 
tiffs, had  expired,  and  if  they  received  such  claim,  and  pro- 
ceeded to  investigate  it,  and  made  no  objection  to  its  adjustment 
and  payment  on  the  ground  that  the  time  within  which  the  claim 
could  be  presented  had  expired,  but  based  the  refusal  of  adjust- 
ment and  payment  on  other  grounds,  then  it  is  the  opinion  of  the 
court  that  such  facts  would  constitute  a  waiver  of  the  per- 
formance of  said  condition  on  the  part  of  the  defendant. 

Tf  the  defendant  did  not  waive  the  performance  of  said  con- 
dition, then  the  plaintiffs'  failure  to  present  their  written  de- 


1350  INSTRUCTIONS   TO    JURY. 

mand  for  damage  within  ten  days  would  bar  their  right  of 
recovery;  but  if  the  defendant  waived  it,  then  it  is  no  defense 
to  this  action. 

The  defendant  also  claims  that  said  contract  contains  the 
following  provision:  "And  the  liability  of  each  of  the  carriers 
which  shall  receive  these  goods  for  transportation  shall  be  con- 
fined to  loss  or  damage  occurring  on  its  own  line,  and  shall 
cease  on  delivery  of  the  goods  to  the  next  carrier." 

The  plaintiffs  also  admit  that  the  bill  of  lading  contains  this 
condition. 

The  defendant  insists  that  it  is  exempt  from  liability  on  the 
ground  that  the  loss  or  damage  occurred  while  the  potatoes  were 
on  the  line  of  another  railroad,  to  which  it,  the  defendant,  had 
delivered  the  potatoes  to  be  carried  from  the  terminus  of  its 
road  to  R. 

The  plaintiffs  claim  that  the  loss  ocurred  or  happened  while 
the  potatoes  were  in  the  possession  of  or  under  the  control  of 
the  said  defendant. 

This  is  a  question  of  fact,  and  if  the  jury  find  that  the  potatoes 
were  not  frozen  while  on  the  defendant's  line  of  road,  then  the 
defendant  is  exempt  from  liability ;  and  if,  on  the  contrary, 
they  find  they  were  frozen  while  on  the  defendant's  line  of  road, 
or  before  they  were  delivered  to  the  connecting  carrier,  then  this 
claim  made  by  the  defendants  does  not  exempt  it  from  liability. 

If  the  jury  find  for  the  plaintiffs,  they,  the  plaintiffs,   will 
be   entitled   to   recover  the   value   of  the   potatoes   which   were 
frozen.     That  is,  the  market  value  at  P.  at  the  time  they  were 
delivered  to  the  defendant  for  shipment.1 
lDeWitt,  J.,  in  B.  &  0.  K.  K.  Co.  v.  Talbot,  Sup.  Ct..  Xo.  271 8. 

Sec.  1632.     Railroad  company — Duty  to  furnish  cars  for  trans- 
portation. 

You  are  instructed  that  it  is  the  duty  of  the  railroad  company, 
as  a  common  carrier,  to  furnish  cars  for  the  transportation  of 
freight,  and  it  must  have  control  over  its  cars  in  order  to  per- 
form its  duties  to  the  public.     If  persons  to  whom  shipments 


COMMON    CARRIERS   OF   FREIGHT.  1351 

of  goods  and  merchandise  are  consigned  might  hold  the  cars 
without  unloading,  at  their  pleasure  or  convenience,  and  without 
extra  costs  or  charges,  and  thus  deprive  the  railroad  company 
of  the  use  of  its  cars  for  the  transportation  of  other  freight,  it 
is  very  evident  that  both  the  railroad  company  and  the  shipping 
public  would  suffer  serious  injury  and  loss.1 
i  Van  Pelt,  J.,  in  B.  &  0.  Railroad  Company  r.  Swisher.  1  0.  X.  P.  Rep.  122. 

Sec.  1633.     Same  continued— Duty  of  company  to  place  cars 
in  suitable  places  for  unloading. 

When  a  car  arrives,  it  is  the  duty  of  the  servants  of  the  com- 
pany to   place  the  same  in  a  convenient  place  for  unloading, 
and  if  it  fails  so  to  do,  the  period  of  four  days  allowed  by  the 
rules  for  unloading  does  not  begin  until  the  car  is  placed  in  a 
convenient  and  proper  place  to  unload.     When  a  car  is  once 
placed  in  a  suitable  place  for  unloading,  it  is  the  duty  of  the 
servants  of  the  company  to  keep  it  so  located  for  the  four  days 
which  are  provided  and  allowed  for  unloading;    and  if  the  com- 
pany fails  so  to  do.  it  can  not  recover  for  car  service  for  such 
car  under  the  rule  until  the  same  is  placed  in  a  convenient  place 
for  unloading,  and  kept  in  such  a  place  for  the  period  of  four 
days.     In  saying  that   the  car  must  be  placed  and  kept  in  a 
convenient  place  for  unloading  during  the  period  of  four  days 
it  is  not  meant  that  the  car  should  be  kept  in  the  same  spot 
or  place  on  the  track  during  all  of  the   period   of  four  days. 
If,  in  receiving  their  cars  from  day  to  day,  and  in  removing 
cars  that  have  been  unloaded,  it  becomes  necessary  to  shift  the 
position  of  the  ear  for  freight  unloading  upon  the  side  tracks 
of  the  company,  such  shifting  or  changing  of  position  will  not 
prevent    the   company   from   recovering;   for   car  service    if  the 
ear  is  not  unloaded  within  the  four  days,  provided  it  is  after 
such  shifting  left  in  a  suitable  and  convenient  place  for  unload- 
ing.    But.  if  the  ear  is  shifted  in  its  position  from  day  to  day, 
and  on  some  days  it  is  in  a  suitable  place  for  unloading,  and 
on  other  days  not,  and  is  not  at  any  time  for  the  full  period  of 
four  days  kept  in  a  suitable  place  for  unloading,  the  company 


1352  INSTRUCTIONS   TO   JURY. 

can  not  recover  from  the  consignor  any  car  service  under  the 
rule  on  account  and  because  of  failure  to  unload  the  car  within 
the  period  of  four  days  prescribed  by  the  rules,  but  he  can  be 
held  liable  for  car  service  on  account  of  his  failing  to  unload 
within  that  time. 

But  if  the  car  is  placed  and  kept  in  a  suitable  place  for  un- 
loading for  the  full  period  of  four  days,  and  the  consignor  fails 
to  unload  the  same  within  that  time,  he  will  be  liable  for  car 
service  after  that  period,  although  the  car  may  not  at  all  times 
thereafter  be  kept  in  a  convenient  place  for  unloading,  unless 
the  servants  of  the  company  thereafter  unreasonably  delay  him 
in  unloading  by  placing  the  car  in  an  unsuitable  place,  keeping 
the  same  there  longer  than  is  reasonably  necessary  to  enable 
them  to  accommodate  other  shippers,  and  to  receive  and  remove 
other  cars  in  the  transaction  of  their  business.  If,  however, 
after  the  period  of  four  days,  the  consignor  is  unreasonably 
delayed  and  hindered  in  the  unloading  of  the  cars,  the  company 
can  not  recover  service  for  any  day  on  which  he  is  thus  injured 
and  delayed.1 
i  Van  Pelt,  J.,  in  B.  &  O.  Railroad  Company  v.  Swisher,  1  0.  N.  P.  Pep.  122. 

Sec.  1634.     Same  continued — Duty  of  company  to  provide  side 
tracks. 

It  is  the  duty  of  the  railroad  company  operating  under  such 
a  rule  or  regulation,  to  provide  at  each  of  its  stations  where 
such  rule  is  in  force,  side  tracks  sufficient  in  number  and  extent 
to  accommodate  its  business  at  such  station,  and  to  enable  its 
servants  to  place  and  keep  cars  accessible  for  purposes  of  un- 
loading. And  if  such  sufficient  side  tracks  are  not  provided, 
and  because  of  the  want"  thereby,  the  servants  of  the  company 
are  unable  to  keep  cars  in  places  convenient  for  unloading  for 
the  period  prescribed  by  the  rule,  the  company  can  not  recover 
for  the  car  service  if  the  car  laid  longer  than  the  time  allowed 
without  being  unloaded.1 
i  Van  Pelt,  J.,  in  B.  &  0.  Railroad  Company  v.  Swisher,  1  O.  N.  P.  Rep.  122. 


COMMON    CARRIERS   OF   FREIGHT.  1353 

Sec.  1635.     Same  continued — May  make  reasonable  rules  con- 
cerning the  car  service. 

It  is  a  well-settled  rule  of  law  in  this  state  that  a  railroad 
company,  as  a  common  carrier  of  freight,  may  make  and  en- 
force all  reasonable  rules  for  the  convenient  transaction  of 
business  between  itself  and  those  dealing  as  shippers  and  con- 
signors.1 

i  Van  Pelt,  J.,  in  B.  &  O.  Railroad  Company  v.  Swishor,  1  O.  N.  P.  Rep.   L22. 

Sec.  1636.     Same   continued — Reasonableness    of   rules — How 
determined. 

Whether  a  particular  rule  or  regulation  is  or  is  not  reason- 
able in  its  requirements,  is,  when  the  facts  are  shown,  a  ques- 
tion of  law  for  the  court,  and  not  a  question  of  fact  for  the  jury. 
You  are  therefore  now  instructed  that  the  time  allowed  for 
unloading,  that  is  four  days,  was  a  reasonable  time,  and  that  the 
amount  charged  ($1.00)  per  day  for  each  day  over  the  period  of 
four  days  is  not  excessive,  and  that  the  rule  or  regulation  in 
question,  if  you  find  that  such  a  rule  or  regulation  is  established 
by  the  evidence,  was  a  reasonable  one,  and  is  valid  in  law.1 
i  Van  Pelt,  J.,  in  B.  &  0.  Railroad  Company  v.  Swisher,  1  0.  X.  P.  Rep.  122. 

Sec.  1637.  Same  continued — Recovery  for  car  service — Effect 
of  rules  regulating  charges  for  car  service 
beyond  the  period  allowed  for  unloading. 

But  the  railroad  company  can  recover  for  charges  for  the 
service  of  their  cars  beyond  the  period  which  they  allow  for 
unloading.  It  must  show  by  a  preponderance  of  the  evidence 
that  the  defendant  was  notified  or  had  actual  knowledge  of  the 
arrival  of  the  cars  and  failed  to  have  the  same  unloaded  for 
more  than  four  days  after  being  thus  notified  or  learning  of 
their  arrival.  If  this  fact  is  not  shown  as  to  some  one  or  more 
of  these  cars  the  plaintiff  can  not  recover;  hut  if  it  is  shown, 
then  the  plaintiff  must  go  further  and  prove  that  it  was  operat- 
ing its  railroad  and  shipping  merchandise  over  its  lines  under 


1354  INSTRUCTIONS   TO   JURY. 

the  rule  or  regulation  applicable  for  shipments  to  this  place, 
requiring  those  persons  to  whom  shipments  were  made  who,  on 
learning  of  their  arrival,  unloaded  the  same  from  the  cars  within 
a  period  of  four  days  thereafter,  and  that  if  they  failed  to  so 
unload  their  cars  within  that  period  that  they  should  pay  to 
the  delivering  company  the  sum  of  one  dollar  per  car  per  day 
for  all  the  time  over  the  period  of  four  days  so  allowed  for  the 
unloading  of  the  car. 

If  you  should  find  that  some  time  before  these  shipments 
were  made  the  number  of  railroad  companies  doing  business 
in  this  part  of  the  country,  including  the  plaintiff,  B.  &  0. 
Railroad  Company,  had  formed  or  entered  into  a  car  service 
association,  and  that  such  association,  in  order  to  secure  the 
prompt  unloading  of  cars,  had  adopted  such  rule  or  regula- 
tion, this  would  be  the  same  in  effect  as  if  the  plaintiff  com- 
pany had  in  itself  adopted  the  same.  But  if  you  find  that  such 
rule  and  regulation  was  then  in  force  and  applicable  to  ship- 
ments to  these  places,  including  the  shipments  of  coal  and 
coke,  then,  if  such  rule  or  regulation  was  reasonable,  that  is, 
if  it  imposes  no  unreasonable  burdens  or  restrictions  upon  those 
receiving  shipments  here,  it  was  legal  and  valid  and  may  be 
enforced  by  the  company.     *     *     * 

If  the  existence  of  such  a  rule  or  regulation  is  not  shown 
the  plaintiff  can  not  recover,  for  it  bases  its  right  to  recover 
on  that  rule.  But  if  the  rule  be  shown,  and  also  that  it  was 
applicable  to  shipments  to  this  point,  and  that  the  defendants 
on  the  arrival  of  the  cars  were  notified,  and  had  obtained  actual 
knowledge  of  the  fact  and  failed  for  more  than  four  days  to 
have  the  same  unloaded,  or  before  plaintiff  can  recover  it  must 
appear  that  defendants  had  knowledge  of  such  rules  or  regula- 
tions at  the  time,  and  it  must  also  be  shown  by  a  preponderance 
of  evidence  that  the  cars  on  their  arrival  were  placed  and  kept 
upon  a  sidetrack  of  the  company  in  suitable  and  convenient 
places  for  unloading  the  same  by  wagons  and  teams.1 
i  Van  Pelt,  J.,  in  B.  &  O.  Railroad  Company  v.  Swisher,  1  0.  N.  P.  Pep.  122. 


COMMON    CARRIERS   OF   FREIGHT.  1355 

Sec.  1638.     Carrier  bound  to  use  ordinary  care  in  shipment  of 
live  stock  when  there  is  delay. 

If  there  was  delay  in  the  transportation  of  the  cattle,  the 
defendant  was  required  to  use  ordinary  and  reasonable  care 
during  the  delay  for  their  safety.  If  the  removal  of  the  cattle 
from  the  car  during  the  time  of  the  delay,  or  at  any  time  while 
in  the  defendant's  possession,  became  reasonably  necessary  for 
their  protection  from  injury,  in  the  exercise  of  ordinary  care 
for  their  welfare,  and  it  was  possible  to  remove  them  by  the 
exercise  of  ordinary  care,  then  it  became  and  was  the  duty  of 
the  defendant  in  the  exercise  of  ordinary  care  to  give  them  such 
attention  as  was  reasonably  and  ordinarily  necessary  for  their 
welfare  and  protection,  during  the  whole  time  the  cattle  were 
in  the  possession  of  defendant.  When  the  defendant  contracted 
to  carry  the  cattle  to  their  destination,  the  law  imposed  upon 
it  an  obligation  to  use  ordinary  and  reasonable  care  in  the 
transportation  and  delivery  of  such  cattle  at  their  destination, 
considering  the  ordinary  perils  of  the  road.  And  if  the  de- 
fendant failed  to  exercise  ordinary  and  reasonable  care  in  their 
transportation  and  delivery  of  such  cattle,  and  by  reason  of 
such  failure  and  neglect,  injury  was  done  to  such  cattle  result- 
ing in  damage  to  plaintiff,  defendant  is  responsible  for  such 
damage,  unless  the  same  was  caused  by  some  condition  beyond 
its  power  to  prevent,  as  by  act  of  God.1 

i  Colsch    r.    "Railway.    140    Towa.    176.    127    X.    W.    198,    Am.    Ann.    Cas. 
1012,  C.   p.   015. 

Sec.  1639.     Cold  weather — Not  act  of  God. 

Where  cattle  are  exposed  en  route  to  a  very  severe  spell  of 
cold  weather,  m  consequence  of  which  they  are  more  or  less 
injured,  such  cold  weather  is  not  within  the  rule  of  law  con- 
sidered as  an  act  of  God  excusing  a  railroad  company  from 
liability  for  such  injury.  Such  condition  ought  and  might  be 
reasonably  foreseen,  and  if  through  the  negligence  of  the  carrier 
the  shipment  of  cattle  is  unnecessarily  delayed  by  reason  whereof 
they  sustain  injuries  by  reason  of  cold  and  rain,  or  from  ex- 


1356  INSTRUCTIONS   TO    JURY. 

posure  to  severe  and  cold  weather  for  an  unnecessary  length  of 
time,  such  carrier  is  liable  for  damages  resulting  therefrom.1 

i  Railroad  v.  Smissen,  31  Tex.  Civ.  App.  549,  73  S.  W.  42;  Am.  Ann.  Cas. 
1912,  C.  p.  922,  note;  Feinberg  v.  R.  R.,  52  N.  J.  L.  451;  Stiles 
v.  R.  R.  Co.,  130  Am.  St.  451,  note.  Snow  storm.  Herring  v.  R.  R., 
101  Va.  778,  45  S.  E.  322. 

Sec.  1640.     Baggage — What  constitutes. 

»  The  term  "baggage"  includes  such  items  of  necessity  or  con- 
venience as  are  usually  carried  by  passengers  for  personal  use 
and  comfort  or  protection  during  the  continuance  of  a  jour- 
ney, and  what  constitutes  baggage  in  any  given  case  depends, 
in  some  measure,  upon  its  own  circumstances.1 

i  Railroad  v.  Johnson,  50  Colo.  187,  114  Pac.  G50,  Am.  Ann.  Cas.  1912,  C. 
p.  627.      What  baggage  includes,  see  note,  99  Am.  St.  347. 

Sec.  1641.     Baggage — Liability  of  carrier,  that  of  an  insurer. 

The  jury  is  instructed  that  the  liability  of  a  common  carrier 
when  it  undertakes  to  carry  baggage  of  its  passengers,  for  the 
loss  thereof,  is  that  of  an  insurer  except  when  the  loss  is  occa- 
sioned by  an  act  of  God  or  a  public  enemy.  But  in  the  absence 
of  a  special  agreement  therefor  the  carrier  does  not  incur  this 
liability  as  insurer,  unless  the  passenger  accompanies  the  bag- 
gage in  its  transportation  or  is  prevented  from  so  doing  by  the 
fault  of  the  carrier.1  The  act  of  God  must  be  the  entire  cause 
of  the  loss,  it  being  essential  that  the  carrier  be  free  from  any 
negligence  contributing  thereto.2 

i  Wood  v.  Railroad,  08  Me.  98.  56  Atl.   339,   99  Am.  St.  339,  note  p.  345. 
2  Sonneborn  v.  Railway,  65  S.  C.  502.     An  unusual  flood  is  an  act  of  God. 
Lon^  v.  Penn.  R.  Co.,  147  Pa.  St.  343,  30  Am.  St.  732. 


CHAPTER    LXXXVI. 
COMPROMISE,   SETTLEMENT  AND  RELEASE. 

Sec.  Sec. 

1642.  Compromise    of    cause     with-  1(543.  Claim      of      void      release      of 

out    knowledge    of    coun-  cause     for     personal    in- 

sel — Claimed      to      have  jury  set  up  in  reply  and 

been  induced  by  fraud —  submitted     to     jury — In- 

Burden  and  proof.  structions. 

Sec.  1642.  Compromise  of  cause  without  knowledge  of  coun- 
sel— Claimed  to  have  been  induced  by  fraud — 
Burden  and  proof. 

If  you  have  found  upon  these  propositions  in  favor  of  the 
plaintiff,  then  you  will  proceed  to  inquire  and  determine  the 
other  question,  whether  a  settlement,  adjustment  or  compromise 
of  the  cause  was  made,  between  the  plaintiff  and  defendant  as 
alleged.  The  plaintiff  had  a  right  to  settle,  adjust  and  com- 
promise the  action  which  had  been  commenced,  without  first 
taking  the  counsel,  advice  or  consent  of  his  attorney,  and  with- 
out reference  to  the  views  or  wishes  of  his  attorney.  To  con- 
stitute a  valid  settlement,  it  must  have  been  understood  between 
the  parties  at  the  time  it  was  made;  their  minds  must  have 
met  upon  the  proposition  which  was  made  with  reference  to  a 
settlement  on  the  one  hand  and  the  acceptance  thereof  by  the 
other.  The  plaintiff  claims  that  no  such  settlement  was  made, 
and  the  quesion  must  he  decided  by  the  jury.  Tf  you  find  a 
settlement  was  made  as  claimed  by  the  defendant,  and  that  the 
same  was  complied  with  upon  their  part,  then  yon  need  inquire 
no  further,  but  should  return  a  verdict  for  the  defendant.  But 
if,  on  the  other  hand,  you  find  that  a  settlement  was  not  thus 
made,  but  was  brought  about  as  is  claimed  by  the  plaintiff,  by 
fraud  practiced  upon  him,  and  by  reason  of  false  representa- 

1357 


1358  INSTRUCTIONS   TO    JURY. 

tion  made  to  him  at  the  time ;  that  he  was  induced  by  reason  of 
fraud  thus  practiced,  and  representations  thus  made,  to  enter 
into  an  arrangement,  agreement  and  settlement  which  was  then 
made,  this  would  not  constitute  a  settlement  between  the  parties, 
and  upon  this  proposition  you  should  find  for  the  plaintiff. 

The  burden  of  proof  upon  the  question  of  settlement  is  upon 
the  defendant,  but  so  far  as  the  introduction  of  the  paper  writ- 
ing by  the  defendant  is  concerned,  or  the  paper  purporting  to 
have  been  executed  and  signed  by  him,  it  would  be  prima  facie 
evidence  of  the  making  of  such  settlement,  that  is,  if  you  find 
that  he  signed  the  paper  writing  that  is  offered  in  evidence, 
and  in  determining  the  question  whether  fraud  was  practiced 
upon  him,  upon  that  question,  the  burden  of  proof  would  rest 
upon  the  plaintiff,  and  you  must  remember  that  fraud  is  not  to 
be  presumed — it  must  be  shown  and  established  by  a  prepon- 
derance of  the  evidence  upon  the  part  of  the  plaintiff,  proven 
as  any  other  fact  in  the  case.1 
i  Pennsylvania  Co.  v.  Lombardo,  49  O.  S.  1. 

Sec.  1643.  Claim  of  void  release  of  cause  for  personal  injury 
may  be  set  up  in  reply  and  submitted  to  jury 
— Instructions. 

Your  attention  is  first  called  to  the  receipt  and  release  pleaded 
in  full  by  the  defendants  in  their  answer  and  which  I  have 
already  read  to  you.     On  its  face  it  purports  to  be  a  receipt 

for  $ in  full  satisfaction  and  discharge  of  all  claims  accrued 

or  to  accrue  in  respect  of  all  injuries  or  injurious  results,  direct 
or  indirect,  arising  or  to  arise  from  the  accident  complained  of 
by  plaintiff.  The  signing  of  such  a  receipt  and  release  consti- 
tutes in  law  prhna  facie  evidence  of  its  due  execution  and  valid- 
ity. That  simply  means  that  on  the  face  of  things  it  is  a  valid 
release  and  unless  something  is  offered  by  way  of  rebutting 
the  same,  why,  of  course  it  was  to  be  taken  for  granted  that 
the  release  was  valid  and  lawful.  Therefore  the  burden  rests 
upon  the  plaintiff  to  show  that  the  release  was  fraudulently 
obtained  so  as  to  render  if  void.     The  plaintiff  can  recover  in 


COMPROMISE,    SETTLEMENT    AND    RELEASE.  1359 

this  case  only  in  the  event  that  he  proves  to  you  that  this  release 
was  void. 

The  release  is  set  up  in  the  answer  by  the  defendants  and 
attacked  by  allegations  by  the  plaintiff  in  his  reply  to  the  effect 
that  his  signature  was  fraudulently  obtained  thereto  by  repre- 
sentations made  to  him  by  defendants  that  said  writing  was 
merely  a  receipt  for  wages  due  him,  upon  which  he  says  he 
relied  without  reading  the  same  or  knowing  what  it  contained. 
This  presented,  in  the  judgment  of  the  court,  a  proper  case  to 
go  to  the  jury  without  having  alleged  tender  of  the  amount 
paid — that  is,  without  the  plaintiff  having  actually  tendered  back 
to  the  defendants  the  $ and  having  alleged  that  in  his  plead- 
ing ;  because  if  such  allegations  are  proved  as  claimed  and  alleged 
by  the  plaintiff  the  release  is  void. 

1.  Void  or  voidable  release.  That  the  jury  may  understand 
its  function  and  duty  in  determining  the  question  of  fact  con- 
cerning the  release,  whether  it  is  void  or  not,  or  whether  it  is 
voidable  only,  your  attention  is  called  to  the  distinction  between 
a  void  release  and  a  voidable  one.  A  release  which  is  signed 
without  knowing  its  contents  upon  false  representations  as  to  its 
contents  made  under  such  circumstances  as  will  excuse  the  per- 
son from  reading  the  same,  or  as  would  warrant  the  person  in 
relying  upon  the  representations  made,  and  which  representations 
were  of  such  character  as  to  throw  the  party,  the  plaintiff  in  this 
case,  off  his  guard,  would  be  void.  If,  for  example,  plaintiff  be- 
lieved, as  he  claims  he  did,  that  the  paper  which  he  signed  was  a 
receipt  for  money  advanced  to  him  by  defendants  during  his  dis- 
ability for  his  time  lost,  and  that  it  represented  merely  the 
amount  so  paid  to  him  during  that  period  and  for  that  purpose, 
and  was  intended  to  merely  show  where  the  money  went,  and  that 
the  plaintiff  did  not'  know  that  it  embraced  anything  else  in  its 
terms,  then  it  would  be  void  and  the  jury,  if  they  find  those  facts 
to  exist,  would  be  justified  in  finding  the  release  to  be  void  and 
therefore  of  no  legal  effect.  Tf,  on  the  other  hand,  at  and  prior 
to  the  execution  of  the  paper  plaintiff  and  defendants  together 
considered  and  discussed  the  matter  of  the  advancement  of  the 
money  by  defendants  to  plaintiff,  and  the  disposition  of  the 


13C0  INSTRUCTIONS   TO   JURY. 

obligation  of  plaintiff  to  defendants  therefor;  if  the  jury  find 
that  there  was  such  an  obligation  of  release — and  that  the  matter 
was  considered  by  the  parties  in  connection  with  the  injury 
which  plaintiff  had  suffered,  and  in  connection  with  his  right 
of  action  in  a  court  of  law  for  the  recovery  of  damages  therefor ; 
and  if  the  final  result  of  such  consideration  and  discussion 
between  the  parties  was  that  the  receipt  and  release  was  signed, 
and  with  full  knowledge  of  all  these  matters,  partly  in  con- 
sideration of  the  money  so  advanced,  as  well  as  by  way  of  a 
release  of  the  obligation  of  plaintiff  therefor  by  defendants,  but 
that  the  plaintiff  did  not  read  the  paper  and  did  not  know  and 
fully  appreciate  the  full  contents  and  effect  of  the  receipt  and 
release,  and  did  not  know  that  it  was  in  effect  an  absolute 
release  of  his  claim  for  damages  resulting  from  the  injury,  then 
the  release  would  be  voidable  only.  That  is,  it  could  be  de- 
clared and  held  void  only  upon  the  election  made  or  exercised 
by  the  plaintiff. 

2.  Election  to  declare  release  void.  In  order  to  exercise  such 
right  of  election,  that  is  to  declare  the  instrument  void,  plaintiff 
would  have  had  to  have  brought:  a  proper  action  in  a  court  of 
equity,  as  we  call  it,  setting  forth  sufficient  grounds  for  the  an- 
nulment of  the  release.  As  a  condition  precedent  to  making  such 
election  and  bringing  such  an  action,  plaintiff  would  had  to  have 
restored  to  defendants  what  they  had  paid  to  him,  to-wit,  the 

$ ;    he  would  had  to  have  tendered  the  money  back  to  the 

defendants,  not  only  before  the  action,  but  he  would  had  to  have 
alleged  in  his  pleading  that  he  had  so  tendered  it  back,  and  as 
well  to  tender  it  in  court  in  order  to  have  made  out  a  cause  of 
action  for  the  annulment  of  that  release,  which  it  would  have 
been  essential  to  bring  before  he  could  have  maintained  his  action 
for  the  recovery  of  damages.  You  understand,  gentlemen,  that 
would  be  necessary  in  the  event  that  this  release  is  voidable  only, 
and  I  have  endeavored  to  state  the  matter  to  you  as  clearly  as 
possible  in  the  light  of  the  evidence  to  enable  you  to  determine 
the  character  of  the  release,  whether  it  is  void  or  voidable. 

The  plaintiff  has  made  no  tender  in  this  case,  nor  has  he 
sought  to  have  the  release  annulled. 


COMPROMISE,    SETTLEMENT    AND   RELEASE.  1361 

The  defendant  having  averred  the  release  in  his  answer,  the 
plaintiff  has  brought  himself  within  the  established  rule  of  pro- 
cedure in  such  case  by  averments  in  his  reply  claiming  it  to 
be  a  void  release.  Where  a  plaintiff  in  an  action  like  this, 
claims  that  an  alleged  release  given  by  him  to  be  void,  the  rule 
is,  that  he  need  not  claim  it  to  be  void  in  his  petition,  but  he 
need  pay  no  attention  to  it  unless  the  defendant  sets  it  up  in 
his  answer.  In  the  reply  plaintiff  may  attack  the  release 
on  the  grounds  that  it  is  void ;  he  may  introduce  testimony 
touching  the  same,  and  the  question  then  may  be  submitted  to 
the  jury;  and  in  this  case  therefore  he — the  plaintiff — is  con- 
fined and  limited,  so  far  as  recovery  in  this  action  is  concerned, 
solely  to  the  theory  that  this  release  is  void,  and  the  question 
submitted  to  you  is  whether  the  evidence  shows  it  to  be  void. 

Governed  and  guided  by  these  instructions,  the  jury  will 
determine  whether  the  release  is  void.  In  reaching  a  conclusion 
on  this  matter  you  will  have  to  determine  whether  the  evidence 
shows  it  to  be  voidable  or  void. 

If  you  are  of  the  opinion  that  the  release  is  only  voidable, 
that  is  under  your  consideration  of  the  case,  because  of  no 
tender  having  been  made  and  no  release  in  equity  having  been 
sought  in  this  action,  the  plaintiff  can  not  recover,  and  it  would 
be  your  duty  to  at  once  render  a  verdict  for  the  defendants 
without  any  further  consideration  of  any  other  question  in  the 
case. 

If  you  are  of  the  opinion  that  the  release  is  void,  no  tender 
back  of  the  money  having  been  necessary  in  such  a  case,  the 
plaintiff  will  not  therefore  be  precluded  from  recovery  by  reason 
of  such  release,  and  you  may  then,  in  that  event,  proceed  to  con- 
sider and  determine  the  question  of  negligence  charged.1 

i  Easton  v.  Robinson,  Franklin  Co.  Com.  PI.,  Kinkead,  J.,  affirmed  by 
Circuit  Court. 

A  void  release  of  a  cause  for  personal  injury  is  not  a  bar.  Plaintiff 
may  make  the  claim  in  the  reply.  If  voidable  only,  lie  can  not 
maintain  Hie  action  until  tin-  release  ie  Bel  aside.  The  cancellation 
of  release  and  claim  for  injury  may  lie  united.  Perry  i>.  O'Neil  Co., 
78  O.  S.  200.  See  Insurance  Co.  v.  Bnrke,  GO  0.  S.  2i)4;  Ins.  Co. 
v.  Hull,  51  O.  S.  270. 


CHAPTER   LXXXVIL 
CONTRACTS. 

( See  Contracts  for  Personal  Services — Building  Contracts.  ) 


SEC. 

1644.  Meeting  of  minds. 

1645.  Contract   by   ratification  when 

no  meeting  of  minds   in 
the  beginning. 

1646.  Consideration. 

1647.  Contracts,  express  or  implied. 

1648.  Contract   made   under    duress 

or  compulsion. 

1649.  Consideration,  exclusive  right 

to   patented   invention. 

1650.  Words     applied     to     trade — 

"New  dress"  for  paper — 
Construction  for  jury. 

1651.  Implied  contract   to  be  found 

by  jury. 

1652.  Parol   evidence  to  vary   writ- 

ten  instrument. 


SEC. 

1653. 
1654. 

1655. 

1656. 


1657. 


Latent  ambiguity  in  contract. 

Latent  ambiguity  in  oral  con- 
tract. 

Defense  of  illegality  of  con- 
tract. 

Meaning  of  contract  to  con- 
struct and  furnish  a 
thing  of  the  "finest 
quality,"  for  the  jury, 
when. 

Action  for  breach  of  covenant 
of  lease,  for  failure  to  re- 
pair, maintain  and  sur- 
render premises.  "Reason- 
able use,"  "Reasonable 
wear." 


Sec.  1644.     Meeting  of  minds. 

The  jury  is  instructed  that  the  meeting  of  the  minds  of  the 
parties  upon  its  terms  is  necessary  to  the  making  of  a  contract. 
If  the  minds  of  the  parties  have  not  met  on  any  terms  of  agree- 
ment, there  is  no  contract;  and  this  is  so  whether  the  contract 
is  claimed  to  be  express  or  implied.1 
i  Railway  r.  Gaffney.  65  0.  S.   104. 

Sec.  1645.     Contract  by  ratification  when  no  meeting  of  minds 
in  the  beginning. 

The  jury  is  instructed  that  where  a  contract  is  entered  into 
without  full  and  complete  understanding  between  the  parties 
of  all  its  terms  and  conditions,  it  still  may  be  made  a  valid  and 
1362 


CONTRACTS.  1363 

binding  contract  by  nets,  declarations  and  conduct  if  of  sufficient 
tenor  and  effect  as  to  show  a  full  understanding  and  agreement 
between  the  parties  on  the  essential  terms  thereof.  Hence  it 
follows  that  acts,  declarations  and  conduct  subsequent  to  an 
incomplete  understanding  if  clearly  referable  to  a  complete  and 
mutual  understanding  between  the  parties,  will  constitute  a 
ratification  of  a  prior  contract  entered  into  between  the  parties 
without  full  accord  and  agreement. 

So  the  jury  is  instructed  that  though  there  may  not  have  been 
an  entire  mutual  understanding  between  the  parties  in  the  be- 
ginning, still  if  the  acts,  declarations  and  conduct  of  the  defend- 
ant shows  that  he  ratified  the  contract  in  afl  the  terms  after 
they  were  fully  understood  by  him,  then  you  will  be  warranted 
in  finding  that  a  contract  was  entered  into.1 

i  Phelps  v.  Pratt.  225  311.  85,  SO  X.  E.  00,  0  L.  R.  A.    (X.S.)    945;   Ander- 
son v.  Anderson.  251  111.  415,  96  X.  E.  265;  Am.  Ann.  Cas.   1012  C. 

Sec.  1646.     Consideration. 

You  are  instructed  that  whatever  works  a  benefit  to  the  party 
promising,  or  whatever  works  any  loss  or  disadvantage  to  the 
person  to  whom  the  promise  is  made,  is  a  sufficient  considera- 
tion to  support  a  contract.  One  promise  is  a  good  consideration 
for  another  promise. 

It  is  necessary  that  the  consideration  of  a  promise  be  of  some 
value,  but  the  law  will  not  enter  into  the  question  of  the  ade- 
quacy of  the  consideration,  except  where  the  inadequacy  is  so 
great  as  to  raise  the  implication  of  fraud  or  imposition.1 
i  Judy  v.  Louderman,  48  O.  S.  562. 

Sec.  1647.     Contracts  express  or  implied. 

Contracts  are  either  express  or  implied.  In  general,  the  only 
difference  between  an  express  and  an  implied  contract  is  in  the 
mode  of  proof.  An  express  contract  is  proved  by  evidence  of 
the  express  words  used  by  the  parties.  An  implied  contract  is 
established  by  proof  of  circumstances,  showing  that  either  in 
justice  and  honesty,  a  contract  ought  to  be  implied,  or  that  the 


1364  INSTRUCTIONS   TO   JURY. 

parties  intended  to  contract.  Whether  the  contract  be  estab- 
lished by  evidence  direct  or  circumstantial,  the  legal  conse- 
quences must  be  the  same. 

The  inference  of  an  implied  contract  is  eminently  a  prac- 
tical matter  for  the  application  of  the  sense  and  judgment  of 
the  jury,  however,  to  be  guided  in  that  respect  by  our  instruc- 
tions to  you,  and  the  evidence,  viewed  in  the  light  of  all  the 
surrounding  circumstances  submitted  to  you,  and  keeping  in 
mind  the  fact  that  the  written  contract  must  prevail  as  to  all 
matters  concerning  .which  they  speak,  unless  modified  by  the 
agreement  of  the  parties  made  subject  to  their  execution  and 
delivery.1 
i  Voris,  J.,  in  Wilhelm  v.  Colohan,  Summit  Co.  Com.  Pleas. 

Sec.  1648.     Contract  made  under  duress  or  compulsion. 

"A  contract  made  under  compulsion  may  be  avoided  by  the 
party  by  whom  it  was  executed.  Compulsion,  however,  to  have 
that  effect,  must  amount  to  what  the  law  calls  duress.  Mere 
anger,  or  profane  words,  or  strong,  earnest  language,  can  not 
constitute  such  compulsion  as  will  amount  to  duress,  or  enable 
a  party  to  be  relieved  from  his  contract.  There  may,  however, 
be  duress  by  threats.  Duress  by  threats  does  not  exist  where 
a  party  has  entered  into  a  contract  under  the  influence  of  the 
threat,  or  only  where  such  threat  may  excite  or  reasonably 
excite,  a  fear  of  some  grievous  wrong,  as  bodily  injury  or  unlaw- 
ful imprisonment. ' n 
i  Adams  v.   Stringer,  78  Tnd.   180. 

Sec.  1649.     Consideration — Exclusive  right  to  patented  inven- 
tion. 

The  contract  under  which  this  suit  is  brought,  in  order  to  be 
binding,  must  be  founded  upon  a  sufficient  consideration.  We 
mean  by  consideration,  the  price,  motive,  or  inducement  that 
led  the  parties  to  enter  the  contract.  The  consideration  for 
which  the  defendants  say  that  they  entered  into  the  contract 


CONTRACTS. 


1365 


set  out.  in  the  petition  was  the  sale  and  transfer  by  plaintiffs  to 

them  of  the  exclusive  right  to  manufacture  and  sell  a  patented 

invention  of  the  plaintiff,  which  plaintiffs  represented  to  be  a 

new   and   useful   attachment,    and    of   great   value    for   sewing 

machines,    for   converting   reciprocating   to   rotary   motion,    for 

which  plaintiffs  had  secured  letters  patent  of  the  United  States, 

and  of  which  plaintiffs  were  the  owners. 

If  you  find  the  plaintiffs'  invention  to  be  capable  of  being 

applied  to  some  practical  or  beneficial  use,  and  is  not  frivolous, 

without  regard  to  the  degree  of  utility,  this  would  constitute 

a  sufficient  consideration  to  support  the  promise  of  defendants 

to  pay  the  royalties  stipulated  for.     But  if  you  find  that  it  is 

not  capable  of  being  applied  to  some  practical  or  beneficial  use, 

and  is  frivolous,  and  the  attachment  could  not  be  sold  to  the 

unsuspecting  public  without  committing  a  fraud,  and  for  which 

there  could  be  no  practical  markets  where  its  merits  were  known, 

then  the  transfer  of  the  right  to  manufacture  and  sell  under  said 

letters  patent  would  not  constitute  a  sufficient  consideration  to 

support  said  promises.1 

iVoris.  J.,  in  Kremer  r.  Hitchcock,  Summit  County  Common  Pleas.  A 
patented  invention  which  is  capable  of  being  applied  to  some  prac- 
tical or  beneficial  use,  and  is  not  frivolous  or  injurious  to  the  well- 
being  of  society  is  valid  without  regard  to  the  degree  of  its  utility. 
and  an  interest  therein  constitutes  a  sufficient  consideration  for  a 
promissory  note  or  other  contract.     Tod   v.  Wick,  20  0.  S.  370. 

Sec.  1650.  Words  applied  to  trade— "New  dress"  for  paper- 
Construction  for  jury. 
Tt  is  a  general  rule,  that  in  the  construction  of  contracts 
language  is  to  be  given  its  plain,  popular  and  ordinary  signifi- 
cation; you  are  to  give  to  the  language  or  the  words  used  by 
tin-  parties  at  the  time  of  the  making  of  the  contract,  their 
plain,  popular  and  usual  signification,  unless  it  appears  that 
the  words  have  a  peculiar  meaning  common  to  a  certain  trade 
or  profession.  Tf  you  find  that  the  contract  is  as  plaintiff 
claims,  that  the  words  "new  dress,"  as  used  in  this  contract, 
have  a  peculiar  meaning  common  only  to  the  trade  or  profes- 


1366  INSTRUCTIONS   TO   JURY. 

sion  of  publishing  and  printing  a  newspaper,  you  will  give  to 
these  words  that  meaning  in  considering  this  contract,  the  mean- 
ing that  is  common  to  that  trade  or  profession,  that  is,  the 
trade  or  profession  of  publishing  and  printing  a  newspaper. 
You  will  ascertain  the  meaning  that  is  to  be  given  to  the  words 
from  the  testimony ;  you  are  to  look  to  the  testimony  and  ascer- 
tain what  peculiar  significance  these  words  have  in  that  trade 
or  profession,  and  in  considering  further,  if  you  find  the  con- 
tract was  made,  you  will  give  to  these  words  the  meaning  as 
they  are  used  in  that  profession  or  trade.1 
i  Gaumer  v.  Riley,  Supreme  Court,  unreported,  Driggs,  J. 

Sec.  1651.     Implied  contract  to  be  found  by  jury. 

The  jury  is  instructed  that  an  implied  contract  is  one  which 
the  jury  may  fairly  infer,  as  a  matter  of  fact,  to  be  existent 
between  parties,  explanatory  of  the  relation  existing  between 
them.  Such  implied  contracts  are  not  generally  different  from 
express  contracts,  the  difference  being  simply  in  the  mode  of 
proof.  Express  contracts  are  proved  by  showing  that  the  terms 
were  expressly  agreed  on  by  the  parties,  whilst  in  implied  con- 
tracts the  terms  are  inferred  as  a  matter  of  fact  from  the  facts 
and  circumstances  surrounding  the  parties,  making  it  reason- 
able that  a  contract  existed  between  them  by  tacit  understanding. 

The  jury  will,  therefore,  look  to  the  facts  and  circumstances 
disclosed  by  the  evidence  and  determine  whether  the  parties 
in  this  case  entered  into  a  contract,  and  if  the  evidence  estab- 
lishes the  fact  that  the  parties  understood  that  each  sustained 
to  the  other  a  contractual  relation,  then  the  jury  will  be  justified 
in  determining  that  a  contract  was  made.1 
i  Railway  v.  Gaffney,  65  0.  S.  104.  114-15. 

Sec.  1652.     Parol  evidence  to  vary  written  instrument. 

It  is  well  settled,  as  a  general  rule,  that  all  parol — that  is, 
verbal — negotiations  between  the  parties  to  a  written  contract, 
such  as  a  promissory  note  or  other  instrument  anterior  to,  or 


CONTRACTS.  1367 

contemporaneous  with,  the  execution  of  the  instrument,  are  to 
be  regarded  as  either  merged  in  it  or  concluded  by  it.  Accord- 
ingly, parol  evidence  is  incompetent  to  show  terms  or  conditions 
at  variance  with,  or  in  addition  to,  a  written  agreement  which 
the  parties  agreed  to  verbally,  prior  to  or  at  the  time  the  con- 
tract was  reduced  to  writing,  but  which  were  not  inserted  in 
the  instrument.  But  to  this  general  rule  there  are  certain 
exceptions. 

Thus,  parol  evidence  is  admissible  to  prove  thai  the  written 
agreement,  or  promise,  was  without  consideration,  or  what  the 
consideration  in  fact  was;  and  parol  evidence  is  admissible  to 
show  that  the  writing  was  never  intended  to  operate  as  an 
agreement  at  all ;  that  the  writing  was  not  accepted  as  the  record 
of  any  contract.1 

i  E.  P.  Evans,  J.,  in  Lillie  u.  Bates,  Sup.  Court,  No.   1636.     See  3  O.  C.  C. 
94,   26   0.    S.    33. 

Sec.  1653.     Latent  ambiguity  in  contract. 

The  law  is  that  when  parties  have  reduced  their  agreement 
to  writing  that  the  terms  and  conditions  of  their  contract  shall 
govern  and  control  their  rights,  and  when  the  meaning  and 
intent  thereof  can  be  ascertained  and  determined  by  the  pro- 
visions of  the  contract  itself  and  there  is  no  ambiguity  in  its 
terms,  then  it  is  the  duty  of  the  court  to  determine  the  meaning. 

But  in  this  case  the  full  import  and  meaning  of  this  contract 
can  not  be  determined  without  the  aid  of  extrinsic  evidence 
outside  and  apart  of  the  contract  itself.  There  being  what  is 
termed  in  law  a  latent  ambiguity  in  the  contract,  it  becomes 
the  duty  of  the  court  to  submit  the  question  of  what  the  parties 
meant  by  their  contract  in  the  provision  [here  state  the  pro- 
vision, as — ]  relating  to  thoroughly  overhauling  the  cars  and 
delivering  them  in  good  condition,  as  well  as  to  determine 
whether  the  defendants  did  or  did  not  comply  with  their  con- 
tract. 

The  jury  must  therefore  determine  what  the  contract  under 
all  the  circumstances  meant.     It  will  be  your  duty  to  take  into 


1368  INSTRUCTIONS   TO   JURY. 

consideration  all  the  facts  and  circumstances  at  the  time  the 
contract  was  made,  as  well  as  all  that  was  said  and  done  by 
the  parties  throughout  the  entire  transaction,  that  is  from  the 
beginning  of  the  negotiations,  from  the  facts  and  circumstances 
and  conversations  when  the  contract  was  made,  and  the  acts 
throughout  the  transaction. 

You  should  also  consider  the  purpose  and  intent  of  the  parties 
at  the  time  they  made  the  contract  for  the  sale  and  exchange 
of  the  property,  the  uses  and  purposes,  which  each  of  the  parties 
intended  to  make  of  the  property,  the  nature  and  condition  of 
the  cars  when  they  were  sold,  and  when  delivered;  whether 
they  were  or  were  not  thoroughly  overhauled  and  delivered  to 
plaintiff  in  good  condition  as  contemplated  by  the  contract 
made  by  the  parties.1 
i  Cincinnati  Equipment  Co.  v.  Kauffman,  Fr.  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1654.     Latent  ambiguity  in  oral  contract. 

Gentlemen  of  the  jury,  this  cause  of  action  being  founded 
upon  an  oral  contract,  claimed  to  rest  upon  the  language  of  the 
witnesses  to  the  effect  that  the  decedent  agreed  that  if  plaintiff 
would  take  care  of  him  the  remainder  of  his  life,  he  would  pay 
her  well,  being  what  is  termed  in  law  latently  ambiguous,  the 
latency  of  the  contract  not  appearing  upon  its  face,  that  is,  you 
will  have  to  look  to  the  surrounding  circumstances  in  order  to 
determine  the  meaning,  it  is,  therefore,  the  province  of  the  jury 
to  interpret  its  meaning  in  the  light  of  all  the  surrounding  cir- 
cumstances and  facts,  as  well  as  by  the  conduct  of  the  parties, 
and  the  declarations  of  either  of  them,  if  any  have  been  made, 
as  well  as  by  the  general  course  of  dealings  between  the  plaintiff 
and  the  decedent.  You  may  or  you  may  not  consider  the  mode 
of  living  under  the  circumstances  which  the  evidence  shows  that 
these  parties  lived,  where  they  lived,  and  the  kind  of  service 
that  would  be  contemplated  and  furnished  under  such  circum- 
stances and  conditions  and  in  the  place  where  the  parties  lived.1 

i  Cornwell    v.    Agler,    as    administrator,    etc.,    Franklin    Co.    Com.    Pleas., 
Kinkead,  J. 


CONTRACTS.  1369 

Sec.  1655.     Defense  of  illegality  of  contract. 

"If  the  jury  shall  find  from  the  testimony  that,  on  or  about 
the  time  stated  in  the  petition,  the  defendant  received  from  the 
plaintiff  a  certain  sum  of  money  under  an  arrangement  that  the 
same  should  be  invested  by  the  defendant  in  wheat  transactions, 
illegal  in  their  character,  for  the  benefit  of  the  plaintiff;  that 
said  money  was  so  invested  by  the  defendant,  and  a  profit  real- 
ized thereon;  and  that  before  the  commencement  of  this  action 
said  sum  of  money  and  the  profits  so  made  came  into  and  are 
still  in  the  hands  of  the  defendant ;  or  that  he  received  credit 
therefor  in  the  final  settlement  of  his  accounts  with  the  brokers 
through  whom  said  business  was  transacted,  then  the  plaintiff 
is  entitled  to  recover  said  money  from  the  defendant ;  nor,  in 
such  case,  can  the  defendant  avoid  his  liability  to  account  for 
said  moneys  by  showing  that,  by  the  understanding  between  the 
plaintiff  and  himself,  said  money  was  to  be  employed  in  illegal 
transactions  in  wheat,  of  the  nature  stated  in  his  answer,  and 
that  said  money  was  employed,  and  said  profits  realized  in  such 
transactions."1 
i  Norton  v.  Blinn,  39  O.  S.  145. 

Sec.  1656.     Meaning  of  contract  to  construct  and  finish  a  thing 
of  the  "finest  quality,"  for  the  jury  when. 

Ordinarily  the  construction  of  a  contract  is  for  the  court,  but 
where  words  in  a  contract  may  have  a  particular  meaning 
attached  to  them  according  to  the  trade  which  may  be  concerned, 
or  referred  to  in  the  contract,  and  where  the  meaning  may  vary 
according  to  the  extrinsic  facts  and  circumstances, — that  is  the 
facts  and  circumstances  outside  of  the  contract  and  those  relat- 
ing to  the  subject  matter  of  the  contract,  then  it  is  for  the  jury 
to  determine  what  the  meaning  of  the  contract  is. 

The  contract  here  is  that  the  plaintiff  undertook  to  construct 
and  erect  a  granite  monument  which  was  to  be  executed  in  the 
best  of  workmanship,  from  the  finest  quality  of  the  above-named 
material.     Quality  is   a  term  employed  as  denoting  grade,  in- 


1370  INSTRUCTIONS   TO   JURY. 

gredients  or  properties  of  an  article.  It  indicates  generally  the 
merit  or  excellence  of  the  article.1  Now  you  are  to  determine 
in  the  light  of  all  circumstances,  and  in  the  light  of  what  qual- 
ity is  used  for  this  purpose,  that  is  the  construction  of  a  monu- 
ment, what  the  finest  quality  of  granite  means.  You  may  take 
into  consideration  also  the  fact,  if  you  find  it  to  be  a  fact,  that 
the  parties  examined  and  saw  samples  of  the  quality  to  be  used. 

1  think  I  need  say  nothing  further  with  reference  to  the  testi- 
mony, but  it  is  a  matter  entirely  within  your  province  to  deter- 
mine what  the  contract  was,  and  whether  or  not  the  contract 
has  been  performed  according  to  its  terms  and  conditions. 

It  is  incumbent  upon  the  plaintiff,  to  make  out  his  case,  to 

show  that  he  has  performed  all  of  the  obligations  on  his  part 

to  be  performed.     That  is,  it  must  appear  by  the  preponderance 

of  the  evidence  that  he  has  furnished  the  kind  of  monument 

which  the  contract,  as  you  will  find  it  to  be  and  mean,  required 

of  him.     If  he  has  established  that  by  a  preponderance  of  the 

evidence,  then  he  is  entitled  to  recover  the  amount  claimed  in 

his  petition.2 

i  Quality  means  "essential  property;  characteristic;  degree  of  goodness; 
capacity."  Quality  is  a  term  employed  as  denoting  the  grade,  in- 
gredients, or  properties  of  an  article.  It  indicates  generally  the 
merit  or  excellence  of  the  article.  State  v.  Martin,  66  Ark.  343,  28 
L.  R.  A.  153;  Dennison  Mfg.  Co.  v.  Mfg.  Co.,  94  Fed.  651,  657. 

2  Haynes  v.  Kost,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1657.  Action  for  breach  of  covenant  of  lease — For  failure 
to  repair,  maintain  and  surrender  premises — 
"Reasonable  use" — "Reasonable  wear." 

The  claim  of  the  plaintiff  is  based  on  an  alleged  failure  of 
defendants  to  repair,  maintain  and  surrender  the  plant,  premises 
and  property  described  in  the  petition  in  the  condition  pro- 
vided for  in  the  contract  of  lease,  sued  on ;  and  to  erect,  main- 
tain in  good  condition  and  so  surrender  certain  other  property 
therein  provided  for. 

The  covenant  of  lease  introduced  in  evidence,  on  which  the 
recovery,  if  any,  must  be  had,  provides : 


CONTRACTS.  1371 

1.  That  the  second  party  agreed  to  take  the  property  demised 
in  its  then  present  condition  and  at  its  own  expense  to  place 
the  said  furnaces,  blowing  engines,  hot-blast  stoves,  fittings, 
buildings  and  appurtenances,  the  reservoir  and  railway  tracks 
in  good  working  order  and  repair  and  so  maintain  them  during 
the  term  of  the  lease  and  at  the  expiration  of  said  term  or  other 
determination  of  the  lease  to  quit  and  surrender  the  premises 
demised  in  as  good  state  and  condition  as  reasonable  use  and 
wear  thereof  would  permit,  and  that  all  losses  by  fire  during 
the  continuance  of  the  lease  should  be  repaired  and  made  good 
by  the  party  of  the  second  part. 

2.  That  said  second  party  would  furnish  and  erect  at  its  own 
expense  new  boilers,  hoisting  engine,  two  pumps,  hot-blast  stove, 
and  all  buildings,  machinery  and  appurtenances  which  might 
be  necessary  for  the  proper  and  economical  running  of  the  iron- 
making  plant,  all  which  were  to  be  maintained  in  good  condi- 
tion during  the  term  of  the  lease  and  so  surrendered  at  its  ex- 
piration or  other  determination  thereof,  except  the  hoisting 
engine  and  two  pumps,  which  the  said  party  was  at  liberty  to 
remove. 

The  instrument  sued  on  in  this  case  was  not  executed  agree- 
ably to  the  provision  of  the  statutes  of  this  state,  in  that  the 
acknowledgment  of  same  was  not  certified  on  the  same  sheet  on 
which  the  instrument  is  written  or  printed.  But  it  is  not  in 
dispute  that  the  second  party  thereto  entered  thereunder,  used 
and  occupied  said  plant  and  premises  to . 

Where  tenants  enter  under  a  lease  which  is  invalid  by  reason 
of  said  statute  or  otherwise,  their  tenancy  is  nevertheless  sub- 
ject to  the  covenants  relative  to  repair,  maintenance,  erection 
and  surrender  on  the  part  of  lessee  in  such  an  instrument.  And 
when  the  Ipsspp  has  entered  under  the  lease  and  occupied  and 
enjoyed  the  premises,  he  is  estopped  to  repudiate  the  lease  on 
the  ground  of  invalidity, 

T  charge  you  that  notwithstanding  the  irregular  manner  of 
the  execution  of  the  lease  in  question  as  to  its  acknowledgment, 
nevertheless,  the  second  party  thereto  is  bound  by  the  stipula- 


1372  INSTRUCTIONS   TO   JURY. 

tion  of  the  lease  relative  to  the  repair,  maintenance,  erection 
and  surrender  of  the  premises  therein  described;  entry  and 
possession  having  been  had  according  to  the  terms  of  the  instru- 
ment. 

By  stipulation  of  the  lease,  it  was  the  duty  of  the  second 
party  thereto,  at  its  own  expense,  to  place  the  property  described 
in  the  first  covenant  mentioned,  in  good  working  order  and 
repair,  and  so  to  maintain  same  during  the  term  of  the  lease 
and  at  its  expiration  to  surrender  same  in  as  good  state  and 
condition  as  reasonable  use  and  wear  thereof  would  permit. 

The  court  has  heretofore  charged  you,  prior  to  the  arguments 
of  counsel,  as  to  the  liability  of  defendants  in  case  you  find 
they  did  not  place  the  property  specified  and  described  in  said 
first  covenant  mentioned  or  any  of  it  in  good  working  order 
and  repair;    or  did  not  so  maintain  same  or  any  of  it  until 

,  and  thereupon  so  surrender  same  in  as  good  state  and 

condition  as  reasonable  use  and  wear  thereof  would  permit, 

In  that  connection,  if  you  find  from  the  evidence  that  the 
said  defendants  or  any  of  them,  placed  the  property  in  the  said 
first  covenant  alleged,  in  good  working  order  and  repair  and 
so  maintained  same  during  the  lease,  and  surrendered  the  same 
in  as  good  state  and  condition  as  reasonable  use  and  wear  thereof 
would  permit,  then  defendants  are  not  liable  in  that  behalf. 

"Reasonable  use"  is  that  which  does  not  unreasonably  pre- 
judice the  rights  of  others. 

''Reasonable  wear"  means  such  decay  or  depreciation  in  value 
of  the  property  as  may  arise  from  ordinary  and  reasonable  use. 

In  determining  what  is  reasonable  use  and  wear  referred  to 
in  the  lease  introduced  in  evidence,  you  will  look  to  the  sur- 
rounding circumstances  in  connection  with  the  making  of  said 
lease,  the  use  for  which  the  plant  and  premises  were  leased,  and 
all  the  circumstances  connected  therewith  and  known  to  the 
parties  tas  revealed  by  the  evidence. 

By  stipulation  of  the  lease  in  question,  the  second  party 
thereto  was  bound  at  its  own  expense  to  furnish  and  erect  new 
boilers,  a  hot-blast  stove,  and  all  buildings,  machinery  and  ap- 


CONTRACTS.  1373 

purtenances  which  might  be  necessary  for  the  proper  and  eco- 
nomical running  of  the  iron-making  plant,  which  were  to  be 
maintained  in  good  condition  during  the  term  of  the  lease  and 
so  surrendered  at  its  expiration. 

It  is  the  claim  of  the  plaintiff  that  in  violation  of  the  second 
covenant  of  the  lease  alleged,  that  the  hot-blast  stove  agreed 
to  be  erected  by  defendants,  was  not  there  at  the  surrender  of 
the  lease;  that  the  electric  light  plant  had  been  removed;  that 
the  boilers  were  worthless ;  that  certain  machinery  fittings  and 
appurtenances,  including  a  large  number  of  bash  plates,  coolei's, 
tuyeres,  cinder  coolers,  monkeys,  pipes  and  fittings,  furnished  by 
defendants  in  partial  compliance  with  their  covenant,  had  been 
torn  out  and  removed. 

The  court  charges  you  that  the  furnishing  and  erecting  of  the 
hot-blast  stove,  stipulated  for  in  the  covenant  just  mentioned, 
did  not  depend  upon  what  might  be  necessary  for  the  proper 
and  economical  running  of  the  iron  plant.  The  agreement  to 
furnish  and  erect  said  stove  was  unconditional,  and  in  any  event 
the  plaintiff  is  entitled  to  recover  the  cost  of  erecting  such  hot- 
blast  stove  on  the  leased  premises  on ,  if  you  find  it  was 

not  erected  by  defendant.  The  agreement  to  furnish  new  boil- 
ers is  likewise  unconditional. 

"Where  one  does  not  specify  the  time  within  which  the  lessee 
is  to  make  improvements,  he  has  the  whole  term  within  which 
to  make  them ;  and  the  measure  of  damages  for  a  breach  of  the 
tenant's  agreement  to  erect  improvements  to  be  made  during 
the  term,  is  the  cost  of  making  them.  Following  the  stipulation 
for  the  new  boilers  and  hot-blast  stove  in  the  covenant  just  men- 
tioned, the  agreement  to  furnish  and  erect  "buildings,  ma- 
chinery and  appurtenances"  therein  mentioned,  is  conditional 
upon  their  being  necessary  for  the  proper  and  economical  run- 
ning of  the  iron-making  plant;  but  not  so  as  to  the  hot-blast 
stove  and  new  boilers  as  hereinbefore  charged. 

Appurtenances  are  things  belonging  to  another  thing  as  prin- 
cipal and  which  pass  as  incident  to  the  principal  thing. 

Whether  or  not  the  electric  light  plant,  the  bosh  plates,  cool- 
ers, tuyeres,  cinder  coolers,  monkeys,  pipes  and  fittings  in  ques- 


1374  INSTRUCTIONS   TO   JURY. 

tion  were  included  in  the  machinery  and  appurtenances,  and 
were  necessary  for  the  proper  and  economical  running  of  the 
iron  plant,  is  for  you  to  determine  from  all  the  evidence  bearing 
on  that  matter. 

The  court  has  heretofore,  prior  to  the  arguments  of  counsel, 
charged  you  as  to  the  liability  of  defendants  in  case  you  find 
the  defendants  did  furnish  and  erect  new  boilers,  and  failed  to 
maintain  and  surrender  same  in  good  condition,  or  boilers  which 
were  not  new  when  erected,  and  not  placed  in  good  condition  at 
surrender,  if  you  so  find ;  and  in  case  defendants  furnished  any 
buildings,  machinery  or  appurtenances  which  were  necessary  for 
the  proper  and  economical  running  of  the  iron  plant  and  did  not 

maintain  them  in  good  condition  until  ,  19 — ,  or  did  not 

then  surrender  up  same  in  good  condition. 

In  that  connection,  if  you  find  from  the  evidence  that  said 
defendants  furnished  and  erected  new  boilers,  as  stipulated  for 
in  said  second  covenant  of  the  lease  contract,  and  all  buildings, 
machinery  and  appurtenances  necessary  for  the  proper  and  econ- 
omical running  of  the  iron-making  plant,  and  maintained  same  in 
good  condition  during  the  term  of  the  lease,  and  so  surrendered 
same  at  the  termination  of  the  lease  of ,  1905,  then  defend- 
ants are  not  liable  for  damage  for  the  property  so  erected, 
maintained  in  good  condition  and  so  surrendered  on ,  19 — -1 

i  Ohio  Mining  &  Mfg.  Co.  v.  Miller,  Franklin  Co.  Com.  PI.,  Rathmell,  J. 
Affirmed  bv  circuit  court. 


CHAPTER    LXXXVIII. 
CONTRACTS— FOR  PERSONAL  SERVICES. 


SEC.  SEC- 

1658.  Action   on   contract    for    sup-       1665. 

port  of  parent. 

1659.  Contract   to   perform   services 

by  one  taken  into  fam- 
ily when  a  child  must 
be  shown. 

1660.  Services  of  child  for  parent — 

Capacity  of  parent  to 
make  contract — Child  as 
member  of  family.  1666. 

1661.  Contract   of   service   made  by 

correspondence. 
1662..  Contracts,  express  or  implied        1667. 
— Proof  of. 

1663.  Contract     for     services    when 

implied. 

1664.  When  the  relation  is  that  of 

brother  or  sister,  or  par- 
ent and  child,  burden 
upon  one  claiming  rela- 
tion of  contract  of  serv- 
ice to  prove  it,  and  to 
rebut  presumption  that 
it  was  gratuitous. 


Service  rendered  by  grand- 
child to  grandparent. 

1.  Request   to    perform    serv- 

ice— Implied  from  cir- 
cumstances. 

2.  Circumstances     negativing 

p  r  o  m  i  s  e —  Gratuitous 
service — Relation  of  child 
and  parent. 

Contract  for  services  be- 
tween employee  and  cor- 
poration. 

Action  for  services  by  wife 
against  executor  of  de- 
ceased father-in-law. 

1.  When  parent  resides  with 

child — Services  by  for- 
mer presumed  gratuitous. 

2.  Husband    entitled    to    per- 

sonal service  of  wife. 

3.  Contract   must    be    shown 

to  warrant  recovery. 

4.  Whether      services    gratu- 

itous. 

5.  Estoppel     to    claim      com- 

pensation for  services. 


Sec.  1658.    Action  on  contract  for  support  of  parent. 

While  a  child  may  he  morally  hound  to  care  for,  support, 
and  maintain  a  mother,  who,  through  the  long  and  weary  nights 
or  days  has  nursed  the  child  during  its  infancy  and  childhood, 
yet  no  such  legal  obligation  rests  upon  him.  In  other  words,  a 
child  is  not  hound  to  support  and  maintain  a  parent  in  his  old 
and  declining  days. 


1375 


1376  INSTRUCTIONS   TO   JURY. 

Therefore,  primarily,  neither  S.  W.  nor  his  wife,  M.  "W.,  was 
bound  to  support,  maintain,  and  care  for  this  old  lady  in  her 
declining  years ;  primarily,  M.  C.  was  bound  to  pay  the  plaintiff 
in  this  case  for  the  services  rendered  to  her  during  her  declining 
years,  and  there  can  be  no  recovery  in  this  case  against  the 
defendant,  unless  the  jury  find  by  a  preponderance  of  the 
evidence  that  the  defendant,  W.  C,  did  promise  to  pay  the 
plaintiff  for  the  care,  sustenance,  nursing  and  support  of  M. 
C,  and  that  by  reason  of  this  promise  made  by  the  defendant, 
W.  C,  he,  the  plaintiff,  did  care  for,  nurse,  support  and  maintain 
M.  C. 

If  the  jury  find  from  the  evidence  that  the  defendant  did 
promise  to  pay  for  the  support,  maintenance,  and  care  of  this 
old  lady,  and  that  by  reason  of  that  promise  he,  the  plaintiff, 
did  support,  maintain,  nurse,  and  care  for  her,  your  verdict  will 
be  for  the  plaintiff,  as  to  this  issue ;  but  if  the  evidence  fails  to 
show  that  the  defendant  did  promise  to  pay,  for  the  support, 
care,  nursing  and  maintenance  of  this  old  lady,  and  that  in  pur- 
suance of  that  promise,  he  did  perform  those  services,  your 
verdict  must  be  for  the  defendant,  and  your  duties  will  then  be 
at  an  end. 

No  particular  form  of  words  is  necessary  to  constitute  a  valid 
and  binding  contract ;  if  a  promise  is  made  upon  one  side,  and 
entered  upon  and  acted  upon  by  the  other,  this  will  be  sufficient 
to  make  it  a  binding  contract. 

In  other  words,  it  is  not  necessary  in  making  a  promise  to  pay 
for  a  particular  service  that  a  certain  form  of  words  of  accep- 
tance of  a  proposition  should  be  used;  it  is  enough  if  one  has 
made  a  promise  that  the  other  shall  enter  upon  and  perform  the 
services  for  which  the  promise  to  pay  is  made.  In  such  case,  if 
the  minds  of  the  two  parties  actually  come  together  at  the  time 
the  promise  was  made,  and  the  services  were  performed  in  con- 
sideration of  that  promise,  this  will  be  sufficient  to  make  it  a 
good,  binding  and  valid  contract. 

If,  therefore,  you  find  that  this  promise  was  made  by  W.  C, 
and  that  S.  W.  accepted  it,  and  that  he  performed  the  serviers, 


CONTRACTS FOR   PERSONAL    SERVICE.  1377 

or  that  they  were  performed  by  his  wife  and  children  (under  the 
restrictions  that  1  shall  hereafter  speak  of),  and  that  he  has 
not  been  paid  for  them,  the  plaintiff  would  be  entitled  to  recover 
the  reasonable  and  fair  value1  of  the  services  so  performed  by 
him,  his  wife,  or  his  daughter,  and  for  the  value  of  the  board  and 
clothing  and  medical  attendance  that  was  furnished  by  him.1 

i  Campbell   v.  Woodward,  Sup.  Ct.  No.  2834.     Judgments  affirmed.     Joseph 
W.  O'Xeall,  J. 

Sec.   1659.     Contract  to  perform  services  by  one  taken  into 
family  when  a  child  must  be  shown. 

The  jury  is  instructed  that  one  who  is  received  in  infancy 
as  a  child,  into  a  family  not  of  kin  to  her,  and  remains  in  the 
household  after  her  majority,  must,  in  order  to  recover  for  her 
services  rendered  such  family  after  her  majority,  show  either  an 
express  contract,  or  circumstances  from  which  a  contract  to  com- 
pensate her  for  such  services  may  be  implied.1 
i  Howard    v.   Randolph,    134   Ga.    GDI.   29    L.    R.    A.    294. 

Sec.  1660.     Services  of  child  lor  parent — Capacity  of  parent 
to  make  contract — Child  as  member  of  family. 

It  is  claimed  by  plaintiff  that  he  had  been  away  from  his 
father's  home,  doing  for  himself  and  family  for  about  twenty- 
two  years,  for  twelve  years  of  which  time,  prior  to  the  attack 
of  paralysis,  by  which  his  father  was  afflicted,  residing  in  the 
State  of  Michigan,  and  that  upon  the  occurrence  of  the  attack 
he  was  telegraphed  to,  and  at  the  mstama  and  request  of  his 
father  that  he  immediately  came  to  his  father's  house,  and  a1 
the  instance  and  request  of  his  father;  he  being  then  helpless 
and  wholly  unable  to  get  up  or  walk,  or  to  help  himself,  or  to 
attend   to  the   wants  of  nature,   and   that  during  the  space  of 

seven  hundred  and  ninety-six  days,  between  the  and 

11m-  ,  that  he  nursed  and  cared  for  his  said   father  by 

handling,  lifting  and  nursing  and  caring  for  him  day  and  night 
during  all  that  time,  for  which  services  he  claims  judgment. 


1378  INSTRUCTIONS   TO   JURY. 

To  the  claim  of  plaintiff  thus  set  forth  the  defendant  says 
that  whatever  services  the  plaintiff  rendered  in  taking  care  of 
and  nursing  his  father,  were  done  and  performed  by  him  as  a 
son  and  member  of  his  family,  and  without  any  promise  of 
payment  by  his  father,  and  without  any  expectations  of  pay- 
ment for  said  services. 

1.  Right  of  son  remaining  in  his  father's  house  to  recover  for 
his  services.  (On  the  issue  thus  presented  the  rule  is  that  where 
a  son,  during  his  minority,  or  even  after  his  arrival  of  age,  re- 
mains in  his  father's  house,  as  a  member  of  his  father's  family, 
and  performs  labor  for  his  father  without  a  promise  of  payment 
for  the  same  by  his  father,  that  there  can  be  no  recovery.  In 
other  words,  that  unless  there  is  a  promise  of  payment  by  the 
father,  and  an  expectation  of  payment  by  the  son,  there  can  be  no 
recovery  for  services  rendered  by  a  son  for  his  father,  even  after 
ke  becomes  of  age,  while  living  with  his  father  as  a  member  of 
the  family.)  * 

In  this  case  it  is  claimed  by  plaintiff  that  the  above  rule  does 
not  apply,  for  the  reason  that  the  plaintiff  was  away  from  his 
father's  home  twenty-two  years,  taking  care  of  himself,  and 
further  that  by  reason  of  the  imbecility  of  mind  of  his  father, 
and  his  helpless  physical  condition,  that  he  was  compelled,  of 
necessity,  to  perform  for  his  father  the  services  that  he  rendered, 
and  that  in  such  case  the  law  implies  a  contract  that  he  should 
be  paid  for  his  services. 

You  will  look  at  all  the  testimony  offered  on  this  question  for 
the  purpose  of  determining  in  what  manner  the  plaintiff  lived 
there  during  his  father's  illness.  Did  plaintiff,  at  the  time  he 
rendered  these  services,  render  them  as  a  gratuity  and  a  member 
of  his  father's  family?    If  he  did,  then  there  can  be  no  recovery. 

2.  Capacity  to  make  contract.  If  you  find  that  J.  N.  was 
mentally  incapable  of  making  a  contract  for  services  for  his  care 
and  nursing,  and  that  such  services  were  rendered  by  plaintiff, 
and  that  the  same  were  necessary,  and  that,  while  so  rendering 
them,  plaintiff  expected  payment  for  the  same,  he  would  be 
entitled  to  receive  payment  unless  you  find  from  the  testimony 
that   plaintiff  was,   during  the   time  the   services   were   being 


CONTRACTS FOR   PERSONAL,   SERVICE.  1379 

rendered,  a  member  of  his  father's  family,  treated  in  every 
respect  by  the  family  by  being  furnished  with  clothing,  spending- 
money,  and  everything  as  a  member  of  his  father's  family  the 
same  as  was  furnished  to  the  other  members  of  the  family,  and 
that  he  was  so  regarded  and  treated  by  the  family,  and  that  he 
so  acted  and  demeaned  himself  and  acted  as  a  member  of  said 
family.  But  in  such  case,  the  plaintiff  having  been  absent  for  a 
great  many  years,  doing  for  himself,  the  burden  is  on  the  defend- 
ant to  prove  that  he  became,  while  there  waiting  on  his  father,  a 
member  of  his  father's  family.  For  this  purpose  you  may  look 
to  the  manner  in  which  he,  the  plaintiff,  and  the  other  members  of 
the  family  all  lived  together  and  acted  towards  each  other.2 

i  "It  is  well  settled  in  Ohio  that  a  child  residing  with  his  father  as  a 
member  of  the  family  is  not  entitled  to  recover  for  work  and  labor 
performed,  or  services  rendered  in  the  absence  of  an  express  agree- 
ment to  pay  therefor,  or  its  equivalent."  Wright,  89  and  134; 
Pollock  v.  Pollock,  2  O.  C.  C.  143;  Hawthorne  v.  McClure,  4  O.  C.  C. 
13.  In  Ulrich  r.  Ulrich,  136  X.  Y.  120,  it  was  held  that  as  matter 
of  law  no  presumption  that  the  services  were  gratuitous  arises. 

2  From  Xesbitt  v.  Knoop,  supreme  court,  unreported.  In  Reando  v. 
Mosplay,  59  Am.  Rep.  15  (Mo.),  services  were  rendered  for  an 
insane  parent.  The  court  said  that  an  implied  contract  might  arise 
between  an  insane  person  and  one  furnishing  necessaries,  and  fur- 
ther charged  that: 

"If  you  believe  and  find  from  the  evidence  in  this  case  that  plaintiff 
rendered  the  services  sued  for  as  acts  of  gratuitous  kindness  to 
her  mother,  and  as  a  member  of  the  family,  with  no  intention  of 
charging  her  for  the  same,  then  you  must  find  the  issues  for  the 
defendant,  and  in  such  case  it  makes  no  difference  how  meritorious 
and  how  valuable  her  service  to  her  mother  may  have  been." 

There  is  no  controversy  over  the  doctrine  that  where  a  child,  though  over 
age,  continues  to  reside  with  his  parent  after  becoming  nf  age,  and 
is  treated  as  a  member  of  the  family,  so  long  as  that  relation 
exists  the  law  implies  no  promise  to  pay.  "Miller  v.  Miller.  10  111. 
296;  Hart  v.  Hess,  41  Mo.  441;  Wells  r.  Perkins,  43  Wis.  160; 
Adams  v.  Adams.  23  Tnd.  50;  Smith  v.  Smith.  30  N.  J.  Eq.  564; 
Wright's  Rep.  89,  133.  547,  751.  Under  such  circumstances  to 
entitle  the  child  to  recover,  he  must  prove,  by  preponderance  of 
evidence,  an  express  hiring,  or  promise  to  pay,  or  circumstances 
from  which  a  hiring  or  promise  may  be  reasonably  inferred.  Steel 
v.  Steel,  12  Pa.  St.  64;  Iliblisli  r.  fliblish.  71  Tnd.  27.  Again  the 
doctrine  that   a   lunatic    (or   imbecile)    or  his  estate   is  liable  for 


1380  INSTRUCTIONS   TO   JURY. 

necessaries  supplied  to  them  can  not  be  denied.  5  Lawson's  R.  & 
R.,  sec.  2390,  and  numerous  cases  cited.  See,  also,  Sawyer  v.  Leufllin, 
56  Me.  308;  Reano  v.  Mosplay,  90  Me.  251;  Blarsdale  v.  Holmes,  48 
Vt.  492;  Richardson  v.  Strong,  55  Am.  St.  430;  Jackson  v.  King, 
15  Am.  Dec.  and  notes  on  p.  368;  Ex  parte  Northington,  79  Am. 
Dec.  p.  67,  and  notes  on  p,  68 ;  Young  v.  Stephens,  97  Am.  Dec.  592. 
An  express  promise  to  pay  must,  however,  be  shown  where  the  par- 
ties live  together  as  members  of  the  same  family,  or  facts  from 
which  the  same  may  be  inferred.  In  re  Perry's  Estate,  25  N.  Y.  S. 
716.  Circumstances  may  be  so  varied  that  in  some  cases  the  implied 
promise  may  arise,  while  in  others  not. 

Sec.  1661.     Contract  of  service  made  by  correspondence. 

If  you  find  from  the  evidence  that  previous  to that  plain- 
tiff and  defendant  had  correspondence  by  mail,  and  that  defend- 
ant, in  a  letter  to  and  received  by  plaintiff,  proposed  to  hire 
plaintiff  to  labor  for  him  for  a  year  at  a  stated  price,  and  that 
plaintiff,  in  a  letter  written  to  and  received  by  defendant,  ac- 
cepted said  proposal  without  condition  or  reserve,  then  such  a 
letter  would  constitute  in  law  a  written  contract  between  plain- 
tiff and  defendant  to  labor  for  one  year. 

In  construing  the  letters,  the  whole  correspondence,  promises 
and  inducements  held  out  should  be  considered,  the  subject- 
matter  and  the  parties,  and  from  the  whole  a  reasonable  con- 
clusion be  deduced ;  and  where  one  party  is  old,  able,  adroit  in 
the  use  of  language  and  promises,  and  the  other  young  and 
inexperienced  in  the  use  of  language,  and  a  minor,  a  court  will 
not  strain  the  rules  of  construction  against  such  minor,  and  in 
favor  of  the  older,  experienced  one,  especially  where  such  con- 
struction would  result  in  cross  injustice  to  the  minor.1 
i  Easthope   v.   Fordyce,    Supreme   Court,   unreported,   No.   2910.     Affirmed. 

Sec.  1662.     Contracts,  express  or  implied — Proof  of. 

Contracts  are  either  express  or  implied.  In  general,  the  only 
difference  between  an  express  and  an  implied  contract  is  the 
mode  of  proof.  An  express  contract  is  proved  by  evidence  of 
the  express  words  used  by  the  parties.  An  implied  contract  is 
established  by  proof  of  circumstances  showing  either  that  in 


CONTRACTS FOR    PERSONAL,    SERVICE.  1381 

justice  and  honesty  a  contract  ought  to  he  implied,  or  that  the 
parties  intended  a  contract.  Whether  the  contract  he  established 
by  evidence,  direct  or  circumstantial,  the  legal  consequences 
must  he  the  same. 

Sec.  1663.     Contract  for  services  when  implied. 

The  law  usually  implies  that,  where  services  are  accepted  or 
other  valuable  thing  is  received,  the  party  accepting  has  agreed 
to  pay  for  them.  This,  however,  is  a  mere  presumption  that 
varies  with  the  circumstances,  and  when  services  are  rendered 
by  one  member  of  the  family  to  another,  this  presumption  does 
not  hold,  in  which  case  the  parties  must  resort  to  evidence  to 
establish  the  presumption  of  an  obligation  to  pay  therefor;  but 
this  presumption  is  one  that  varies  with  the  circumstances  and 
is  to  be  determined  by  the  understanding  either  express  or 
implied  between  the  parties  as  developed  by  the  evidence  sub- 
mitted to  you.  But  the  mere  fact  that  plaintiff  rendered  such 
services  to  a  sister  in  and  of  itself  does  not  raise  the  presumption 
of  an  implied  contract  to  pay.  If  you  find  by  a  preponderance 
of  the  evidence  that  no  contract,  either  express  or  implied,  was 
entered  into  between  the  decedent  and  plaintiff,  this  would  end 
the  case,  and  your  verdict  should  be  for  the  defendant.1 
i  Voris,  J.,  in  Fairbanks  v.  Otis.  Summit   County  Common  Pleas. 

Sec.  1664.  When  the  relation  is  that  of  brother,  or  sister  or 
parent  and  child,  burden  upon  one  claiming 
relation  of  contract  of  service  to  prove  it,  and 
to  rebut  presumption  that  it  was  gratuitous. 

The  rule  is  well  settled  that  where  the  relation  of  parent  and 
child,  or  brother  and  sister  exists,  the  law  will  not  presume  any 
other,  that  is,  the  law  will  not  presume  that  of  debtor  and  credi- 
tor. Tn  order  to  estahlish  the  inferior  relation  of  debtor  and 
creditor  between  a  parent  and  child,  or  brother  and  sister,  there 
must  be  proof  more  or  less  strong,  hut  sufficient  to  carry  con- 
viction, that  the  parties  understood  the  inferior  relation,  to-wit : 


1382  INSTRUCTIONS   TO   JURY. 

that  the  parties  contracting  to  subsist  between  them  at'  the  time 
an  agreement  in  reference  to  it  is  entered  into. 

If  you  should  find  that  the  decedent'  promised  to  pay  the 
plaintiff  for  the  services,  you  may  presume  that  a  contract  was 
entered  into  to  perform  the  services.  To  enable  the  plaintiff  to 
recover,  a  preponderance  of  the  evidence  must  show  a  promise 
to  pay,  or  that  the  decedent  expected  to  pay  for  the  services, 
or  that  the  decedent  could  not,  in  justice  or  good  conscience, 
receive  the  same  and  not  pay  therefor  what  they  were  reasonably 
worth,  and  that  the  plaintiff  expected  to  receive  compensation 
for  his  services. 

The  jury  is  instructed  that  there  must  be  evidence  to  rebut 
the  presumption  that  what  was  done  by  the  plaintiff  for  her 
sister  was  gratuitously  given  and  received,  so  that  if  you  find 
from  the  evidence  that  the  services  were  gratuitously  given,  as 
an  act  of  sisterly  duty  and  affection  merely,  and  no  request  and 
no  promise  to  pay,  or  that  the  circumstances  accounted  for  her 
conduct  on  grounds  more  probable  than  that  of  the  promise  of 
recompense,  no  presumption  of  a  contract  will  be  implied.  But 
if  you  find  that  the  circumstances  were  such  as  required  extra- 
ordinary and  continuous  services  of  substantial  value,  the  pre- 
sumption that  the  services  were  gratuitously  rendered  to  a 
sister  would  not  necessarily  obtain,  and  we  leave  it  for  you  to 
say,  under  all  the  circumstances  provided,  whether  the  services 
and  the  items  of  the  account  rendered  were  intended  to  be 
gratuitously  given.  If  gratuitous,  you  should  find  for  the 
defendant :  if  not,  you  should  find  for  the  plaintiff.1 
iVoris,  J.,  in  Fairbanks  v.  Otis.  Summit  County  Common  Pleas. 

Sec.  1665.     Service  rendered  by  grandchild  to  grandparent. 

1.  Request  to  perform  service — Implied  from  circumstances. 

2.  Circumstances  negativing  promise — Gratuitous  services — 

Relation  of  child  and  parent. 

3.  Presumption  that  services  by  child  for  parent  during  sick- 

ness while  living  in  same  household  is  gratuitous. 

1.  Request  to  perform  services — Implied  from  circumstances 
— General  doctrine.     The  plaintiff  alleges  in  her  petition  that 


CONTRACTS FOR    PERSONAL,   SERVICE.  1383 

these  services  were  performed  at  A.  S.  's  request.  Such  request, 
gentlemen,  need  not  he  proven  by  direct  and  positive  evidence; 
a  request  to  perform  services  may  be  implied  from  facts  and 
circumstances  proved  on  the  trial  of  a  case.  If  a  man  accepts 
valuable  services  from  another,  and  receives  the  benefit  of  them, 
the  law  implies  a  request  upon  the  part  of  the  person  receiving 
such  services  for  the  other  to  perform  the  same.  And  in  this 
case,  gentlemen,  you  would  be  warranted  in  implying  a  request 
upon  the  part  of  A.  S.  for  the  plaintiff  to  perform  the  services 
that  she  did  perform. 

It  is  admitted  here  that  the  services  were  performed,  and  it 
is  admitted  they  were  of  value,  and  from  these  facts  the  law 
will  warrant  you  in  implying  a  request  upon  the  part  of  S.  for 
the  plaintiff,  Mrs.  C,  to  perform  these  services.  But  to  go 
further,  was  there  an  implicatiou  ?  Does  the  law  imply  a  promise 
from  the  facts  and  circumstances  proved  on  the  trial  of  this  case 
on  the  part  of  S.  to  pay  their  reasonable  value?  Ordinarily 
where  there  is  a  request  to  perform  valuable  services,  and  when 
they  are  performed  in  pursuance  of  such  request,  the  law  will 
imply  a  promise  upon  the  part  of  the  person  receiving  the  benefit 
of  such  services — a  promise  to  pay  their  reasonable  value — 
unless  there  has  been  something  shown — some  facts  and  circum- 
stances shown — that  negative  any  implied  promise  upon  the 
part  of  the  person  receiving  the  services  to  pay  their  reasonable 
value. 

2.  Circumstances  negativing  promise — Gratuitous  services — 
Relation  of  child  and  parent.  In  this  case  it  is  claimed  that 
there  are  circumstances  surrounding  the  performance  of  these 
services  that  negative  any  implication  upon  the  part  of  S.  to  pay 
for  the  same.  It  is  claimed  that  the  plaintiff  here  entered  the 
family  of  A.  S.  when  she  was  about  eleven  or  twelve  years  of 
age;  that  she  continued  to  reside  in  his  family  as  a  member  of 
the  same,  performing  the  services  claimed  in  the  petition  up  to 
and  including  her  twenty-fourth  year.  It  is  claimed  that  during 
the  time  she  was  in  tbis  family  she  was  not  only  a  member  of  it, 
but  was' treated  as  a  member  of  the  family,  and  that  her  boarding, 


1384  INSTRUCTIONS   TO   JURY. 

clothing,  and  lodging  were  furnished  her  hy  A.  S.  It  is  admitted 
that  the  plaintiff  was  the  granddaughter  of  defendant's  testate, 
A.  S.  It  is  claimed  here  by  the  defendant  that  these  circum- 
stances negative  any  implied  promise  upon  the  part  of  A.  S.  to 
pay  for  the  same. 

Services  performed  at  the  request  of  another,  while  they  may 
be  valuable,  and  while  they  may  be  beneficial  to  the  person  who 
receives  them,  may  be  performed  under  such  circumstances  as 
that  the  law  will  imply  that  they  were  gratuitously  performed; 
that  the  law  will  imply  that  the  party  who  performed  them 
never  intended  to  make  any  charge  for  the  same,  or  never 
expected  any  compensation  for  the  same. 

3.  Presumption  that  services  by  child  for  parent  during  sick- 
ness while  living  in  same  household  is  gratuitous.  Where  a 
person  sustaining  the  relation  of  a  child  to  a  parent  performs 
valuable  services,  and  during  the  time  of  the  performance 
of  the  same  is  a  member  of  the  famity,  receiving  his  board, 
his  clothing,  his  lodging,  and  his  nursing,  if  he  became  sick 
during  that  time,  the  law  presumes  that  such  services  were 
gratuitously  performed,  and  that  there  was  no  expectation  upon 
the  part  of  the  person  performing  the  same  that  the  person  for 
whom  they  were  performed  would  pay  him.  The  law  presumes 
under  such  circumstances  that  such  services  were  gratuitous, 
with  no  expectation  of  receiving  any  compensation  therefor. 
To  sustain  the  contention  of  the  plaintiff  in  this  case,  the  evi- 
dence must  sustain  the  claim  that  the  services  were  not  rendered 
under  the  ordinary  relation  of  parent  to  a  child,  or  parent  to 
a  grandchild,  or  debtor  to  a  creditor,  or  master  and  servant. 
You  must  look  to  all  the  evidence  in  determining  the  question. 
Was  this  girl  a  member  of  that  family?  Was  she  treated  as  a 
member  of  that  family  ?  Was  she  treated  as  the  other  daughter 
was  treated?  Was  she  provided  for  as  the  other  daughter? 
Was  she  provided  for  as  the  daughter  of  a  man  in  the  circum- 
stances of  A.  S. — in  the  circumstances  in  which  he  then  was — 
usually  provides  for  his  daughter?  Was  what  she  needed  and 
what  was  necessary  for  her  condition  and  station  in  life  pro- 
vided for  her  by  A.  S.  during  the  period  she  claims  to  have 
performed  these  services? 


CONTRACTS FOR   PERSONAL   SERVICE.  1385 

You  are  to  determine  this  question  from  the  evidence,  and 
from  the  evidence  alone.  If  you  shall  find  from  the  evidence 
that  she  entered  this  family  as  a  member  of  it,  and  was  treated 
in  all  respects  as  a  member  of  the  family — as  a  daughter;  if  S. 
provided  for  her  clothing,  board,  lodging,  nursing,  and  medi- 
cine, if  it  was  required,  then  in  that  case  the  law  raises  the  pre- 
sumption that  these  services  were  gratuitously  performed. 

But  if,  upon  the  other  hand,  you  find  in  this  case  that  she 
was  not  a  member  of  the  family ;  that  she  was  not  treated  as 
a  member  of  his  family,  and  S.  did  not  furnish  her  with  what 
would  be  necessary,  if  a  member  of  the  family  in  that  behalf, 
then,  in  that'  case,  the  law  raises  no  presumption  that  these 
services  were  performed  gratuitously.  And  if  they  were  per- 
formed at  the  request  of  A.  S.,  then,  in  that  case,  the  law  im- 
plies a  promise  upon  the  part  of  S.  to  pay  their  reasonable  value. 
And  even  if  you  shall  find  that  this  plaintiff  went  into  this 
family  and  resided  there  as  a  member  of  the  same,  being  treated 
as  such,  and  being  provided  with  clothing,  food,  lodging,  nurs- 
ing, and  medicine,  and  everything  that  was  necessary,  yet  in 
this  case  you  find  that  A.  S.  expressly  promised  to  pay  her  a 
reasonable  value  for  her  services,  then,  in  that  case,  she  had  a 
valid  and  subsisting  claim  at  law  against  defendant's  testate.1 

i  John  B.  Dri^gs,  Judge,  in  W.  X.  Stilwell  r.  Cowans,  Belmont  County.  S. 
C.  3785.  Settled  while  in  Supreme  Court.  Affirmed  by  Circuil 
Court. 

Sec.  1666.     Contract  for  services  between  employee  and  corpo- 
ration. 

To  entitle  the  plaintiff  to  recover,  there  must  have  been  a  con- 
tract between  him  and  the  defendant,  through  its  agent,  express 
or  implied,  for  Ins  services  as  flagman. 

1.  Contract  express  or  implied.  An  express  contract  is  proved 
by  evidence  of  the  express  words  of  the  parties,  or  authorized 
agents  for  the  purpose.  An  implied  eontraet  is  established  by 
proof  of  circumstances  showing  that  either  in  justice  or  honesty 
a  contract  ought  to  be  implied,  or  that  the  parties  intended  to 


1386  INSTRUCTIONS   TO   JURY. 

contract,  and  whether  the  contract  be  established  by  evidence 
direct  or  circumstantial,  the  legal  consequences  resulting  from 
the  breach  of  it  must  be  the  same. 

The  defendant  being  a  corporation,  only  acts  through  its 
agents  duly  authorized.  If  the  plaintiff  performed  the  serv- 
ices of  the  flagman  at  the  defendant 's  request,  or  with  its  knowl- 
edge and  consent,  and  the  latter  voluntarily  took  the  benefit  of 
such  labor,  then  the  law  presumes  that  he  will  be  paid  for  his 
labor,  unless  the  contrary  is  shown  by  the  evidence.  And  if 
no  special  contract  is  proved,  fixing  the  price,  then  he  is  entitled 
to  have  what  his  services  are  reasonably  worth.  And  if  you 
find  these  facts  by  a  preponderance  of  the  evidence  under  the 
rules  given,  your  verdict  should  be  for  the  plaintiff;  otherwise 
for  the  defendant. 

Sec.  1667.     Action  for  services  by  wife  against  executor  of  de- 
ceased father-in-law. 

1.  When  parent  resides  with  child,  services  by  former  pre- 

sumed gratuitous. 

2.  Husband  entitled  to  personal  service  of  wife. 

3.  Contract  must  be  shown  to  warrant  recovery. 

4.  Whether  services  gratuitous. 

5.  Estoppel  to  claim  compensation  for  services. 

1.  When  parent  resides  with  child,  services  by  former  pre- 
sumed gratuitous.  Where  a  parent  resides  in  the  family  of  a 
child  the  presumption  is  that  no  payment  is  expected  for  serv- 
ices rendered  by  one  to  the  other.  This  presumption  is  not  con- 
clusive, and  may  be  overcome  by  proof  of  a  contract  to  pay  for 
such  services.  Such  a  contract  may  be  proved  by  direct  or 
indirect  evidence,  but  in  suits  for  compensation  for  services  where 
a  family  relation  is  conceded  or  shown  to  exist,  an  actual  con- 
tract must  be  proved  as  the  basis  of  recovery  therefor. 

2.  Husband  entitled  to  personal  service  of  wife.  The  husband 
is  entitled  to  the  personal  services  of  the  wife,  and  to  any  com- 
pensation owing  for  such  services,  unless  she  was  doing  business 
independent  of  her  husband  or  with  an  understanding  and  an 


s 


CONTRACTS — FOR   PERSONAL   SERVICE.  1387 

agreement  with  him  that  she  was  to  receive  and  have  as  her  own 
the  compensation  for  such  services  rendered. 

3.  Contract  must  be  shown-  to  warrant  recovery.  The  plaintiff 
in  this  case  can  not  recover  unless  she  prove  by  a  preponderance 
of  the  evidence  that  there  was  a  contract  upon  her  part  to  per- 
form the  services  of  nursing  and  caring  for  J.  S.  K.  for  com- 
pensation and  upon  his  side  to  accept  the  services  and  pay  her 
for  them,  and  that  the  husband  of  the  plaintiff  consented  thereto. 
If  the  plaintiff  fails  to  prove  to  you  by  a  preponderance  of  the 
evidence  that  such  a  contract  was  entered  into  between  her  and 
J.  D.  K.  whereby  he  was  to  pay  her  for  services  or  nursing  and 
care,  if  any  be  rendered,  and  that  her  husband  consented  to  the 
same,  then  defendants  are  entitled  to  your  verdict. 

If  you  find  from  the  evidence  that  a  contract  was  entered  into 
between  J.  D.  K.  and  plaintiff  whereby  plaintiff  was  to  perform 
services  of  nursing  and  care  for  him,  and  upon  his  part  he  was 
to  accept  same  and  pay  for  them,  and  that  plaintiff's  husband 
consented  thereto,  and  that  in  pursuance  thereof  the  plaintiff 
rendered  him  services  of  nursing  and  care  during  the  period 
claimed,  then  the  plaintiff  is  entitled  to  recover  the  reasonable 
and  fair  value  of  such  services  unless  you  find  that  the  defendants 
have  proved  the  defense  of  settlement  and  payment  for  the  serv- 
ices set  forth  and  alleged  in  their  second  defense  of  their  answer. 

4.  Whether  services  gratuitous.  It  is  the  claim  of  defendants 
that  if  plaintiff  rendered  any  services  whatever  to  J.  D.  K.,  she 
rendered  them  gratuitously  and  as  a  member  of  his  family ;   and 

they  further  claim  that  on ,  said  J.  D.  K.  settled  with  and 

paid  L.  K.  in  full  of  all  demands  to  that  date,  including  any  and 
all  services  that  had  been  rendered  to  J.  D.  K.  by  way  of  care  or 
nursing  prior  to  said  date,  and  that  no  services  whatever  were 
rendered  to  him  thereafter  by  plaintiff  or  her  husband. 

There  can  be  no  recovery  for  services  rendered  voluntarily 
or  gratuitously  where  a  family  relation  exists  in  the  absence  of 
a  contract  that  they  were  to  be  compensated.  A  family  is  defined 
as  a  collective  body  of  persons  who  form  one  household  under  one 
head  and  one  domestic  government. 


1388  INSTRUCTIONS   TO   JURY. 

If  you  find  from  the  evidence  that  plaintiff,  her  husband  and 
J.  D.  K.  lived  together  as  a  family  and  that  the  plaintiff  nursed 
and  cared  for  her  father-in-law  gratuitously,  that  there  was  no 
contract  between  plaintiff  and  J.  D.  K.,  that  such  services  were 
not  to  be  compensated,  then  plaintiff  is  not  entitled  to  recover 
therefor,  and  your  verdict  in  such  case  should  be  for  defendants. 

5.  Estoppel  to  claim  compensation  for  services.  Where  one 
person  by  his  acts  and  with  knowledge  induces  another  to  believe 
certain  facts  to  exist  and  such  other  person  rightfully  acts  on 
the  belief  so  induced,  and  is  misled  thereby,  the  former  is  estopped 
to  afterwards  set  up  a  claim  based  upon  facts  inconsistent  with 
the  facts  so  relied  upon  to  the  injury  of  the  person  so  misled. 
Estoppel  may  arise  from  silence  as  well  as  words,  but  this  is  only 
where  there  is  a  duty  to  speak,  and  the  party  upon  whom  the 
duty  rests  has  an  opportunity  to  speak,  and  knowing  the  circum- 
stances requiring  him  to  speak,  keeps  silent. 

If  you  find  from  the  evidence  that  a  contract  was  entered  into 
between  plaintiff  and  J.  D.  K.  whereby  he  was  to  compensate 
her  for  her  services  of  nursing  and  caring  for  him,  and  that  this 
was  with  the  knowledge  of  L.  K.,  husband  of  plaintiff,  and  that 
she  rendered  such  services  during  the  period  claimed  for  in  the 

petition ;  and  you  further  find  that  on ,  that  J.  D.  K.  was 

about  to  leave  his  son's  residence  and  make  his  home  elsewhere 
and  stated  that  he  wanted  to  pay  all  his  bills  that  he  owed  there, 
and  that  in  the  presence  of  the  plaintiff  and  her  husband,  he 
settled  with  and  paid  L.  K,  his  son,  for  all  care  and  nursing  that 
had  been  rendered  him  up  to  that  date,  and  that  no  services  were 
rendered  him  by  plaintiff  after  that  date,  and  that  plaintiff  knew 
that  J.  D.  K.  was  settling  and  paying  in  full  for  services  ren- 
dered by  her  up  to  that  date,  and  that  so  knowing:  kept  silent  and 
did  not  assert  her  claim,  and  that  thereby  J.  D.  K.  was  misled 
to  believe  that  she  assented  thereto,  under  such  circumstances, 
she  will  be  held  to  have  acquiesced  or  assented  to  such  payment 
of  her  claim,  and  is  not  entitled  to  recover  in  this  case, — and  so 
findm?,  vour  verdict  should  be  for  the  defendants.1 

iKinnaird   v.  Kinnaird   &  Wagner,  Exrs.,  etc.     Court  of   Common   Pleas, 
Franklin  Co.,  O.,  Rathmell,  J. 


CHAPTER    LXXXIX. 
DAMAGES— IN  PERSONAL  INJURY. 

(See  Death  by  Wrongful  Act.) 


1668.  Measure   of   damages    in   per-  physician      as      affecting 

sonal  injury — Medical  at-  damages. 

tendance.  1672.  Damages   recoverable  by   hus- 

1669.  Same — A  briefer  form.  band   for   injury  to  wife. 

1670.  Damages  for  injury  to  minor  1673.  Measure     of     damages    where 

in  suit  by  next  friend.  special   defense  made  on 

1671.  Duty   of   injured   to   care   for  account  of  physical   con- 

himself — Employment  of  dition  of  plaint  ill. 

Sec.  1668.    Measure  of  damages  in  personal  injury — Medical 
attendance. 

If  you  find  that  the  plaintiff  is  entitled  to  recover,  your  ver- 
dict should  be  in  his  favor;  and  it  should  be  in  such  an  amount 
as  will  fully  compensate  him  for  the  injuries  which  he  has  actu- 
ally sustained,  directly  resulting  from  the  negligence  and  want 
of  care  on  the  part  of  the  defendant.  This  compensation  would 
include  the  pain  that  he  has  already  suffered,  as  well  as  the  pain 
he  will  continue  to  suffer,  if  his  injuries  are  of  such  a  character 
as  to  cause  him  pain  in  the  future.  The  time  that  he  has  actu* 
ally  lost  by  reason  of  his  injuries,  and  the  loss  that  may  accrue 
to  him  by  reason  of  bis  diminished  capacity  to  earn  money  in 
the  future,  if  you  find  bis  injuries  are  such  as  to  diminish  his 
capacity  to  earn  money  in  the  future. 

Tn  addition  to  this  be  would  be  entitled  to  recover,  if  you  find 
in  bis  favor,  for  expenses  actually  and  necessarily  incurred  by 
him  in  ibis  case  by  wny  of  medical  attendance  and  nursing,  and 
wbicb  have  been  proven  to  have  been  thus  expended;  and  you 
may  also  take  into  consideration  any  further  expense  which  will 

1389 


1390  INSTRUCTIONS   TO   JURY. 

naturally  and  necessarily  be  incurred  by  him  by  reason  of  his 
injuries,  if  you  find  that  his  injuries  are  of  such  a  character  as 
to  require  such  expenses  and  outlay  upon  his  part. 

You  may  also  take  into  consideration  the  length  of  time  that 
has  elapsed  from  the  time  that  the  plaintiff  received  his  injuries 
until  the  present,  not  as  interest,  nor  by  way  of  interest,  but 
simply  as  a  part  of  the  compensation  to  which  the  plaintiff 
would  be  entitled  in  order  to  make  him  whole,  if  you  find  he  is 
entitled  to  recover.1 
i  From  P.  &  L.  E.  E.  R.  Co.  v.  Munich,  supreme  court,  unreported. 

Sec.  1669.     Same — Another  briefer  form. 

If  you  find  that  the  defendant  is  liable,  you  will  award  to 
the  plaintiff  such  sum  as  damages  as  will  fairly  and  justly  com- 
pensate him  for  the  injury ;  the  measure  of  his  damages  is  com- 
pensation and  only  compensation.  You  will  take  into  considera- 
tion the  nature  of  the  injury,  the  extent  of  it,  the  pain  which  he 
has  suffered,  all  the  expenses  which  he  has  necessarily  been  put 
to  in  consequence  of  the  injury.  You  will  consider  the  effect 
of  the  injury,  the  permanency  of  it ;  the  effect  of  the  injury  upon 
his  bodily  strength  and  upon  his  capacity  to  labor  and  earn  a 
living,  and  all  the  circumstances,  calmly  and  deliberately,  and 
apply  your  judgment  to  the  evidence  in  the  case.  If  you  find  in 
favor  of  the  plaintiff,  as  I  have  said,  you  will  award  him  such 
damages  as  will  fairly  and  justly  compensate  him  for  the  injury. 

Sec.  1670.  Damages  for  injury  to  minor  in  suit  by  next  friend. 
But  the  father  is  entitled  to  the  services  and  earnings  of  his 
minor  son,  until  he  becomes  twenty-one  years  of  age,  and  may 
bring  an  action  in  his  own  name  against  the  defendant  to  recover 
such  damages  as  he  may  have  sustained  in  consequence  of  its 
alleged  negligence ;  and  therefore  you  can  not  allow  the  plaintiff 
(a  next  friend)  any  damages  for  any  of  his  time  that  has  been 
lost,  or  which  may  be  lost  in  consequence  of  said  injury  before 
he  reaches  the  age  of  twenty-one  years.1 
i  Evans,  Judge,  in  Cent.  Nat.  Gas  &  Fuel  Co.  v.  Baker. 


DAMAGES — IN    PERSONAL    INJURY.  1391 

Sec.  1671.     Duty  of  injured  person  to  care  for  himself — Em- 
ployment of  physician  as  affecting  damages. 

"If  the  plaintiff  is  entitled  to  recover  any  damages,  he  is 
entitled  to  recover  an  amount  sufficient  to  compensate  him  for 
the  injury  which  he  has  actually  sustained,  so  far  as  the  damages 
to  him  naturally  and  directly  flowed  from  and  were  caused  by 
his  wounds,  bruises,  or  other  injuries  caused  by  defendant's  acts 
of  negligence  complained  of.  After  the  plaintiff  was  injured 
he  was  bound  to  use  ordinary  care  and  prudence,  under  all  the 
circumstances,  to  take  care  of  himself  and  his  wounds ;  and  if 
he  employed  a  physician  of  good  standing  and  reputation,  sup- 
posing and  having  reason  to  think  he  was  such,  and  who,  in  fact, 
was  such,  then,  though  the  physician  may  not  have  used  all  of 
the  approved  remedies,  or  that  remedy  which  would  have  been 
most  suitable  in  the  case,  or  which  a  good  medical  man  would 
have  used  under  the  circumstances,  and  on  account  of  the  failure 
to  use  such  usual  or  proper  remedies  his  condition  is  worse  than 
it  would  be  had  it  been  used,  still  plaintiff  may  recover  for  his 
actual  damages,  if  he  himself  has  not  been  negligent,  and  such 
treatment  or  failure  to  use  such  remedy  merely  will  not  prevent 
plaintiff  from  recovering  the  full  extent  of  his  injuries  as  afore- 
said."1 
i  From  Loeser  v.  Humphrey,  41  O.  S.  378. 

Sec.  1672.     Damages   recoverable   by  husband   for  injury   to 
wife. 

You  should  not  include  any  damages  that  resulted  to  the  hus- 
band of  the  plaintiff  for  any  injuries  to  the  person  of  his  wife, 
for  her  physical  suffering,  or  her  mental  anguish,  such  as  con- 
stitute a  violation  of  her  personal  rights,  for  anything  which  she 
may  have  lost  in  her  wages,  or  her  ability  to  earn  wages,  or  as 
a  wage-earner  for  other  persons,  but  not  in  the  domestic  services 
of  the  plaintiff  in  his  family  or  household  affairs,  or  to  her  own 
separate  property  or  means.  I  Jul  for  ;ill  these  the  law  gives  her 
a  remedy  in  her  own  right,  and  for  which  the  husband  may  not 
recover.     But  he  may  recover  in  this  action  for  any  damages  he 


1392  INSTRUCTIONS   TO    JURY. 

may  have  sustained  by  reason  of  the  impaired  ability  of  his  wife 
caused  by  said  acts  of  negligence,  if  any  you  find  from  the  evi- 
dence, to  perform  her  usual  domestic  services  in  and  about  his 
family  and  household,  for  such  services  as  she  was  able  and 
usually  contributed  "to  his  pursuit  of  gardening  in  connection 
with  her  household  duties,  and  in  selling  and  marketing  said 
products,"  taking  into  account  the  loss  of  time,  the  extent  and 
probable  duration  of  any  impaired  ability  which  you  may  find 
from  the  evidence,  if  any,  for  any  loss  of  the  society  and  comfort 
of  his  wife,  and  for  any  expenses  reasonably  incurred  for  surgical 
and  medical  attendance  and  nursing,  incurred  in  his  own  behalf, 
or  for  his  said  wife,  and  for  damages  to  the  vehicles  as  you  find 
the  facts  to  be  from  the  evidence.1 

i  Voris,  Judge,  in  Cranmer  v.  Akron  St.  Ry.  Co.,  Summit  County  Com- 
mon Pleas.  See  London  v.  Cunningham,  20  N.  Y.  S.  882,  22  Am.  St. 
Rep.  800. 

Sec.  1673.    Measure  of  damages  where  special  defense  on  ac- 
count of  physical  condition  of  plaintiff. 

While  it  is  no  defense  to  say  that  the  person  was  of  susceptible 
nervous  diathesis,  or  of  infirm  health,  and  liable  to  break  down 
from  nervous  exhaustion  or  other  causes,  and  not  able  to  perform 
ordinary  labor,  yet  these  circumstances  as  you  find  them  to  be 
may  be  and  should  be  considered  by  you  in  determining  what 
compensation  ought  to  be  awarded,  if  any,  by  reason  of  future 
impaired  ability  to  earn  wages  (or  perform  labor)  or  engage  in 
any  profitable  employment,  as  bearing  upon  the  question  of  the 
length  of  time  the  plaintiff  may  or  may  not  continue  to  be  dis- 
abled, and  the  probable  duration  of  his  (or  her)  life. 

But  for  whatever  impairment  he  (or  she)  has  so  sustained, 
or  will  sustain,  and  caused  by  said  wrongful  acts  of  the  defend- 
ant, he  (or  she)  is  entitled  to  be  compensated,  so  far  as  you  can 
reasonably  ascertain  from  the  evidence.  You  may  consider  also 
what  effect,  if  any,  the  fact  that  the  plaintiff  continued  in  her 
occupation  after  the  injury  had  upon  her  physical  condition. 
You  are  instructed  that  for  any  suffering  or  impairment  caused 


DAMAGES — IN    PERSONAL    INJURY.  1393 

or  sustained  by  reason  thereof  she  can  not  recover,  if  by  reason- 
able care  and  prudence  under  all  the  circumstances,  and  the  sur- 
rounding circumstances  should  be  considered  by  you  in  deter- 
mining whether  she  exercised  reasonable  care  and  prudence,  she 
would  have  avoided  them.  The  defendant  can  not  be  charged 
with  the  consequences  of  the  want  of  reasonable  care  and  pru- 
dence of  the  plaintiff  that  caused  her  suffering  or  impairment 
that  otherwise  she  would  not  have  endured. 

But  you  are  instructed,  however,  that  it  is  not  sufficient  to 
defeat  her  action  that  she  thereby  only  aggravated  the  injury 
caused  by  the  negligence  of  the  defendant.1 

i  Voris,  Judge,  in  Dussel  v.  Akron  St.  R.  R.  Co..  Summit  County  Com- 
mon Pleas.     Affirmed  by  Circuit  and  Supreme  Court. 

As  to  damages  for  personal  injury  when  the  person's  health  is  impaired 
at  the  time  of  injury,  see  10  Am.  St.  Rep.  Go. 

Sec.  1673a.     Same  continued — Amount  of  compensation. 

As  to  the  amount  of  compensation,  the  court  can  give  you  no 
further  assistance.  The  law  has  wisely  left  that  to  the  intelli- 
gence, candor,  and  impartial  judgment  of  twelve  jurors.  Neither 
should  your  prejudices  or  sympathies  in  the  least  affect  that 
judgment.  What  does  a  fair  consideration  of  the  evidence  say 
that  impartial  justice  demands? 

It  is  the  pride  of  our  jurisprudence  that  justice  is  admin- 
istered impartially.  The  law  loves  candid  Justin',  and  is  no 
respecter  of  persons.  The  rich  and  poor,  the  weak  and  influen- 
tial, are  alike  entitled  to  its  protection.  You  arc  the  exponents 
of  that  sense  of  justice.1 

i  Voris.  Judge,    in    Dussel    p.    Akron   St.   R.   R.   Co..   Summit    County   Com- 
mon Pleas.     Affirmed  by  Circuit  and  Supreme  Court. 


CHAPTER    XC. 
DANGEROUS  PREMISES. 

SEC. 

1674.  Injury  to  one  walking  along  sidewalk  and  privately  paved  part  of 
premises  connected  therewith  by  falling  into  hole  directly  in 
front  of  cellar  window.  (See  special  subjects  or  headings  in 
sectional  heading  in  text.) 

Sec.  1674.  Injury  to  person  walking  along  sidewalk  and  pri- 
vately paved  part  of  premises  connected 
therewith  by  falling  into  hole  directly  in  front 
of  cellar  window. 

1.  Statement  of  pleadings  and  issues. 

2.  Burden  of  proof. 

3.  Credibility  of  witnesses. 

4.  The  question  for  the  jury. 

5.  Owner  of  premises  bound  to  keep  premises  in  safe  con- 

dition for  persons  going  thereon.     Duty  to  traveler  on 
sidewalk. 

6.  Defendant  liable  only  if  hole  dangerous. 

7.  Duty  as  to  verdict. 

8.  Duty  of  plaintiff. 

9.  Proximate  cause. 

It  is  alleged  and  not  disputed  that  the  defendant  was  the  owner 
at  the  time  of  this  alleged  injury,  of  the  premises  in  question. 
It  is  alleged  and  not  disputed  that  he  had  leased  them  to  a  woman 
by  the  name  of  D.  M.  for  the  purpose  of  conducting  a  millinery 
store  or  business  on  the  property.  It  is  alleged  and  not  dis- 
puted that  this  D.  M.  had  millinery  displayed  in  the  windows. 

It  is  alleged  and  not  disputed  that  prior  to  the  date,  , 

at  the  time  of  leasing  the  premises,  that  there  was  a  cement  pave- 
ment in  front  of  the  house  about  thirteen  feet,  ten  inches  wide, 
from  the  curbstone  on  High  street  to  the  front  wall  of  the  house ; 
1394 


DANGEROUS    PREMISES.  1395 

that  a  portion  of  this  pavement,  about  eight  feet  next  up  and 
parallel  to  the  curb  was  city  sidewalk,  and  the  remainder  was 
on  the  private  property  of  the  defendant. 

Then  it  is  alleged  and  not  disputed  that  this  pavement  is  con- 
tinuous and  on  the  same  plane,  extending  from  the  curb  back  to 
the  property  of  the  defendant.  It  is  alleged  and  not  disputed 
that  it  extends  back  with  the  exception  that  there  is  a  cement 
step  at  the  entrance  of  the  premises  in  which  this  open  hole  was. 
It  is  alleged  and  not  disputed  that  there  was  a  hole  in  the  pave- 
ment in  the  form  of  a  segment  of  a  circle  which  was  unguarded ; 
that  it  was  open  and  that  it  was  directly  in  front  of  a  cellar  win- 
dow, and  that  there  was  a  window  above  with  millinery  dis- 
played, and  so  on.  It  is  alleged  that  the  hole  was  about  five  feet 
back  from  the  city  sidewalk  line ;  that  it  was  twelve  inches  deep, 
about  eleven  inches  wide  at  the  widest  point,  and  about  three 
feet  nine  inches  long  from  end  to  end  along  the  line  of  the  outer 
surface  of  the  front  wall,  and  that  the  hole  was  a  part  of  the 
permanent  improvement  of  the  property. 

The  plaintiff  alleges  that  there  was  nothing  on  the  pavement 
to  show  the  city  sidewalk  line,  and  alleges  that  the  pavement  was 
open  for  public  use ;  that  all  of  the  said  pavement  was  used  by 
persons  going  to  and  from  the  house  or  viewing  the  millinery  in 
the  front  window  of  the  tenant,  D.  M. 

Plaintiff  then  alleges  the  manner  in  which  she  received  her 
injury. 

The  defendant  enters  a  general  denial  of  all  the  things  that 
are  not  admitted,  and  the  second  defense  is  that  said  plaintiff 
wandered  off  of  the  city  sidewalk  in  front  of  the  defendant's 
premises  without  reason  or  excuse  therefor,  went  upon  the  private 
property  of  the  defendant  and  negligently  stepped  into  the  said 
opening  in  front  of  the  cellar  window ;  that  the  property  of  the 
defendant  in  front  of  the  house  was  well  lighted  and  that  said 
opening  could  have  been  readily  seen  and  observed  by  the  plain- 
tiff, who  was  thoroughly  familiar  with  the  defendant's  premises 
and  house,  and  knew,  or  in  the  exercise  of  ordinary  care,  should 
have  known  of  the  whereabouts  and  location  of  the  opening,  and 


1396  INSTRUCTIONS   TO   JURY. 

that  the  negligent  conduct  of  the  plaintiff  was  the  proximate 
cause  of  any  injury  which  she  suffered  and  which  is  set  forth  in 
the  amended  petition. 

2.  Burden  of  proof .      (The  usual  charge.) 

3.  Credibility  of  witnesses.     (The  usual  charge.) 

4.  The  question  for  the  jury — Dangerous  character  of  hole. 
The  question  for  the  jury  in  this  case  is  whether  the  hole  as 
described  and  admitted  in  the  pleadings  was  so  located  as  to  be 
dangerous  to  persons  and  to  the  plaintiff  lawfully  passing  along 
and  upon  the  pavement  in  front  of  the  defendant's  property 
while  using  ordinary  care,  and  whether  ordinary  prudence  re- 
quired defendant  to  erect  a  barrier  around  or  over  the  hole. 

It  is  admitted  that  about  eight  feet  of*  the  sidewalk  was  city 
sidewalk  while  the  remainder  thereof  was  on  the  premises  of 
the  defendant;  that  the  same  was  continuous  and  on  the  same 
plane,  extending  from  the  curb  to  the  front  wall  of  the  house 
except  for  the  front  steps  at  the  entrance  to  the  house,  and  which 
extended  out  to  the  south  of  the  hole ;  that  the  hole  was  about 
twelve  inches  deep  and  about  eleven  inches  wide  at  the  widest 
point,  and  about  three  feet  nine  inches  long,  which  was  part  of 
the  permanent  improvements  on  the  premises. 

The  question  which  the  jury  must  determine  is  whether  the 
open  hole  was  of  such  nature  and  character,  and  located  in  such 
position  with  reference  to  the  street  and  sidewalk  and  that  part 
of  the  defendant's  premises  which  were  paved  with  cement  like 
the  city  sidewalk  and  lying  beyond  the  outer  line  of  the  cement 
steps  to  defendant's  property  that  a  person  in  the  lawful  and 
ordinary  use  of  the  same,  and  exercising  ordinary  care  was  or 
is  in  danger  of  falling  into  the  hole ;  that  is.  if  the  traveling 
public  and  this  plaintiff  were  unable  to  observe  the  technical 
division  line  between  the  city  sidewalk  and  the  defendant's  prem- 
ises, which  were  paved  similar  to  the  city  sidewalk,  constituted 
an  apparent  public  sidewalk  kept  so  by  the  defendant,  and  was 
so  constructed  as  to  induce  and  allure  the  public  and  the  plain- 
tiff to  use  it  and  to  suppose  it  to  be  part  of  the  public  way,  the 
people  generally  and  the  plaintiff  lawfully  used  it,  the  jury  may 


DANGEROUS    PREMISES.  1397 

infer  that  it  constituted  part  of  the  public  way,  and  the  jury 
may  infer  therefrom  an  implied  invitation  or  license  to  use  such 
part  of  the  defendant's  premises  as  a  public  way. 

5.  Owik  r  of  pr(  mises  bound  to  keep\pr(  mist  s  in  safe  condition 
for  persons  going  thereon — Duty  to  traveler  on-  sidewalk.  The 
general  rule  of  law  is  that  an  owner  is  bound,  and  the  defendant 
was  bound  to  keep  his  premises  in  a  safe  and  suitable  condition 
for  those  who  go  upon  and  pass  over  them  using  due  care,  if  he 
has  held  out  any  invitation,  express  or  implied,  by  which  they 
have  been  led  to  enter  thereon.  Even  if  you  should  find  that 
plaintiff  passed  with  or  without  knowledge,  beyond  the  technical 
line  of  the  street,  that  fact  will  not  alone  enable  you  to  determine 
the  question  whether  she  was  in  the  exercise  of  a  traveler's  right, 
because  a  traveler's  right  on  the  street  is  not  confined  to  simply 
passing  along  the  street.  The  plaintiff  had  the  right  to  lawfully 
use  the  public  way,  or  any  portion  of* defendant's  premises  that 
may  have  been  used  as  a  public  way  by  the  traveling  public, 
whether  if  was  on  a  paved  portion  of  defendant's  premises,  or 
on  the  city  sidewalk.  If  you  find  that  the  paved  portion  of  de- 
fendant's premises  were  used  by  the  public,  you  are  instructed 
that  the  plaintiff  would  then  have  the  right  to  use  such  public 
way  which  was  either  part  of  the  street  or  that  part  of  defend- 
ant's premises  used  by  the  public  for  an  approach  or  entry  to  the 
building  of  defendant  for  a  lawful  purpose. 

The  jury  will  notice  that  I  have  distinctly  spoken  of  that  part 
of  the  defendant's  premises  which  have  been  so  improved  by 
him  in  such  way  that  you  could  not  or  may  not  imply  a  license 
to  the  public  and  to  the  plaintiff  to  use  as  a  public  way  for  travel. 
I  have  purposely  refrained  from  reference  to  that  portion  of  the 
premises  where  the  hole  is  located  because  the  question  which  is 
submitted  to  the  jury  is  whether  the  hole  in  question,  under  all 
the  circumstances  in  this  case,  was  dangerous  to  persons  lawfully 
using  the  street  or  public  way;  whether  there  was  danger  of 
persons  falling  into  the  same. 

6.  Defendant  liable  only  if  Jwle  dangerous.  The  defendant 
can  be  held  liable  in  this  case,  if  responsible  at  all,  only  in  case 


1398  INSTRUCTIONS   TO   JURY. 

the  jury  find  that  the  hole  was  dangerous  to  persons  lawfully 
using  the  public  way  and  that  he  failed  to  perform  some  duty  of 
protection  from  it  if  it  was  dangerous.  The  location  of  the  hole, 
the  proximity  to  the  public  way,  the  character  of  the  use  of  the 
public  way  and  the  manner  of  it's  use,  the  probability  that  trav- 
elers would  or  would  not  be  endangered  there,  and  the  particular 
and  peculiar  surroundings  of  the  case  make  it  one  for  the  jury, 
which  must  take  all  these  matters  into  consideration  in  determin- 
ing whether  it  was  or  was  not  dangerous.  Was  there  any  danger 
there  to  plaintiff  while  she  was  exercising  ordinary  care  in 
passing  along  the  public  way? 

7.  When  owner  to  erect  harriers.  In  the  matter  of  the  alleged 
dangerous  character  of  the  hole  in  question  claimed  by  plaintiff, 
the  jury  is  instructed  that  the  defendant  as  owner  of  the  premises 
was  not  obligated  to  erect  and  maintain  barriers  to  protect  trav- 
elers on  or  along  the  public  way  or  street  from  an  opening  or 
hole  such  as  is  claimed  to  exist  in  this  case,  unless  the  hole  is 
located  so  near  the  street  or  public  way  used  by  travelers  as  to 
be  a  place  of  danger,  or  is  of  such  nature  and  character  as  to  be 
a  place  of  danger  for  those  lawfully  passing  along  the  street  or 
public  way  in  the  use  of  ordinary  care.  The  true  test  in  law  of 
the  obligation  of  the  defendant  to  erect  a  barrier,  if  there  is  any, 
is  not  necessarily  the  distance  from  the  sidewalk  or  public  way 
of  the  hole  in  question,  whether  it  be  much  or  little,  but  it  is,  on 
the  contrary,  whether  the  plaintiff  in  passing  along  the  street 
or  public  way,  exercising  ordinary  care,  would  or  would  not  be 
subjected  to  such  imminent  danger  that  it  would  reasonably 
require  a  barrier  to  make  the  place  or  premises  reasonably  safe. 
This,  gentlemen,  is  the  question  for  you  to  determine  in  this  case. 
The  jury  will,  by  the  application  of  the  rules  of  law  given  you 
by  the  court,  determine  whether  the  hole  in  controversy  was  or 
was  not  dangerous ;  whether  it  should  or  should  not  be  protected 
by  a  barrier  to  protect  those  lawfully  using  the  public  way  from 
imminent  danger,  themselves  using  ordinary  care. 

8.  Duty  as  to  verdict.  If  you  find  that  there  was  not  such 
imminent  danger  to  travelers  as  to  require  a  barrier,  that  will 


DANGEROUS    PREMISES.  1399 

be  an  end  of  your  consideration  of  the  case  and  your  verdict  will 
in  such  event  be  for  the  defendant.  But  if  you  find  that  the 
hole  was  such  a  place  of  imminent  danger  as  to  reasonably  require 
a  barrier,  then  you  will  consider  further  whether  the  injury  to 
plaintiff  was  caused  by  the  neglect  of  defendant,  or  whether  it 
was  caused  by  the  neglect  of  plaintiff  herself,  as  alleged  by  the 
defendant  in  his  answer,  by  negligently  stepping  into  the  said 
opening.  Defendant  claims  that  the  opening  could  have  been 
readily  seen  and  observed  by  the  plaintiff  who,  it  is  alleged,  was 
thoroughly  familiar  with  the  defendant's  premises  and  house 
and  knew,  or  in  the  exercise  of  ordinary  care,  could  have  known 
of  the  location  of  the  opening. 

9.  Duty  of  plaintiff.  The  plaintiff  was  bound  to  use  ordinary 
care  in  the  use  of  the  sidewalk  and  public  way.  If  you  find  that 
by  the  use  of  ordinary  care  she  could  or  should  under  all  the 
circumstances  and  conditions  have  known  of  the  existence  of  the 
hole,  and  therefore  could  have  avoided  the  injury  to  herself,  she 
may  not  recover  and  your  verdict  in  such  event  should  be  for 
the  defendant'. 

10.  Proximate  cause.  If  both  parties,  defendant  and  plaintiff, 
were  negligent,  you  will  determine  which  was  the  proximate 
cause  of  the  injury,  the  neglect  of  the  defendant  or  the  neglect 
of  the  plaintiff. 

The  proximate  cause  is  the  efficient  cause,  the  act  but  for  which 
the  injury  would  not  have  occurred.  If  it  was  plaintiff's  negli- 
gent conduct  that  directly  caused  the  injury,  she  may,  of  course, 
not  recover ;  but'  if  it  was  directly  caused  by  reason  of  the  immi- 
nent danger  of  the  hole  and  the  failure  to  properly  protect  it, 
your  verdict  should  be  for  the  plaintiff.  And  in  that  event  you 
will  award  her  such  compensation  by  way  of  damages  as  you  in 
your  judgment,  deem  proper  under  all  the  evidence.  You  may 
consider  the  nature  of  her  injury,  any  pain  or  suffering  that  she 
may  have  endured.1 
i  Walker   v.    Rader,   Franklin   Co.   Com.   PI.,  Kinkcad,  J. 


CHAPTER   XCI. 
DEATH  BY  WRONGFUL  ACT. 


SEC 

167 


Action  for  death  by  homicide 
— Self-defense. 

1676.  Same  continued — What  is  ex- 

cusable   homicide. 

1677.  Same      continued — Right     of 

self-defense  —  Justifica- 
tion. 

1678.  Action  for  death  by  wrongful 

act  by  administrator  of 
wife  killed  at  steam  rail- 
road crossing  while  rid- 
ing with  husband,  who 
is  driving  team — Rail- 
road crossing  case. 

1.  Introductory  statement. 

2.  Failure    to    provide   gates, 

to  give  warning  of  ap- 
proach of  trains  at  cross- 
ing, and  to  keep  watch- 
man thereat — Ordinance. 

3.  Failure   of   driver   and   oc- 

cupants of  wagon  to  look 
and  listen  for  approach- 
ing trains. 

4.  Administrator  may  recover 

if  deceased  not  negligent. 

5.  Occupant  of  wagon  having 

right  to  direct  or  con- 
trol one  whose  negligence 
contributes  to  injury — 
Husband  and  wife. 


Sec. 

6.  If    husband    or    wife    saw 

or  could  have  seen  train. 

7.  Misled      by       absence      of 

watchman. 

8.  Failure     to    ring    bell    or 

sound   whistle. 

9.  Vision  obstructed  by  build- 

ings. 
10.  Contributory    negligence  of 
beneficiaries. 

1679.  Measure  of  damages  for  death 

of  husband — Wife  and 
children   as  beneficiaries. 

1680.  Another   form   as   to  measure 

of  damages  for  death  of 
husband. 

1681.  Damages   for   death   of   young 

man. 

1682.  Intelligent     discretion     to     be 

used  in  assessment  of 
damages. 

1683.  Damages  resulting  to  husband 

and  children  for  death  of 
wife. 

1684.  Measure       of       damages       for 

death  of  child — Mental 
pain  and  anguish  not 
elements. 

1685.  Measure    of     damages — Earn- 

ing capacity. 


Sec.  1675.     Action  for  death  by  homicide— Self-defense. 

"It  is  to  be  observed  that  this  case  is  to  be  tried  in  the  same 
manner,  and  it  is  to  be  governed  by  the  same  principles  of  law, 
as  if  the  deceased  had  not  died  of  the  injuries,  and  had  com- 
menced an  action  for  the  recovery  of  damages  for  these  injuries, 
or  in  other  words,  that  this  action  can  be  sustained  under  such 
state  of  facts  only  as  would  have  entitled  the  deceased,  had  he 
1400 


DEATH    BY    WRONGFUL    ACT.  1401 

lived,  to  have  maintained  an  action,  and  recover  damages  for 
the  injury  which  caused  his  death." 

"If,  for  instance,  the  deceased  had  been  wounded,  and  had  not 
died  of  his  wounds,  and  had  brought  an  action  against  the  defend- 
ant for  damages,  if  it  appeared  that  deceased  made  the  first 
assault,  and  this  defendant  repelled  it  by  force,  employing  no 
more  force  than  was  necessary  to  protect  himself,  the  plaintiff 
(deceased)  could  not  recover;  but  if  the  defendant  went  unnec- 
essarily beyond  this,  ami  employed  force  entirely  dispropor- 
tionate to  the  attack,  such  as  to  show  wantonness,  malice,  or 
revenge,  he  himself  would  become  a  wrongdoer  and  would  be 
liable  for  injuries  inflicted  beyond  what  was  reasonable  and 
necessary. ' n 

i  Darling  v.  Williams,  35  0.  S.  58.  The  case  from  which  this  is  taken 
was  not  one  of  negligence,  but  of  intentional  killing.  The  defend- 
ant denied  the  charge,  and  alleged  that  all  he  did  was  done  in  self- 
defense.  This  allegation  the  plaintiff  denies,  and  upon  these  issues 
the  case  was  called  to  trial.  There  was  no  appearance  that  the 
defendant's  liability  arose  from  negligence.  The  injury  was  the 
outgrowth  of  a  fight  or  affray.  Had  the  deceased  survived  and 
brought  an  action  for  the  injury,  it  would  have  been  an  action  for 
assault  and  battery.  In  such  action  the  law  governing  cases  of  neg- 
ligence, would  have  been  entirely  inapplicable.  Darling  v.  Williams, 
supra. 

Sec.  1676.     Same  continued — What  is  excusable  homicide. 

Tt  seems  to  be  now  well  settled  that  to  justify  the  taking  of 
the  life  of  an  assailant  in  an  attack,  there  must  appear  to  the 
satisfaction  of  the  jury,  first,  that  the  defendant,  if  assaulted 
without  any  wrong  or  cause  on  his  part,  honestly  and  truly 
believes  that  he  is  in  imminent  danger  of  his  death,  or  of  great, 
bodily  harm;  and  if,  secondly,  he  has  just  and  reasonable  cause 
to  apprehend  such  danger,  which  he  can  not  avoid  without  taking 
the  life  of  his  adversary,  it  is  excusable.1 
i  Darling  v.  Williams.  35  O.  S.  58. 

Sec.  1677.     Same  continued— Right  of  self-defense — Justifica- 
tion. 
That  every  person   bus  the   right   to  defend   himself  against 
attacks    or  threatened  attacks,  of  such  character  as  would  en- 


1402  INSTRUCTIONS   TO    JURY. 

danger  his  life  or  limb,  or  to  do  him  great  or  serious  bodily  harm 
or  injury,  even  to  the  taking  of  the  life  of  the  assailant;  and 
where  a  person  apprehends  that  another  is  about  to  do  him  great 
bodily  harm,  and  has  reasonable  grounds  for  believing  the  danger 
imminent,  he  may  safely  act  upon  such  apprehension  and  even 
kill  the  assailant,  if  that  be  necessary,  to  avoid  the  apprehended 
danger. 

That  the  necessity  which  permits  in  law,  the  taking  of  life  in 
self-defense,  may  be  either  apparent  or  real.  It  is  real  when 
there  is  actual  danger  to  life,  or  great  bodily  harm ;  it  is  appar- 
ent, when  the  circumstances,  at  the  time  of  taking  life,  to  a  rea- 
sonable mind,  indicated  the  presence  of  actual  danger  to  life,  or 
great  bodily  harm,  though  there  is  in  fact  none.1 

"It  is  not,  however,  necessary  that  the  danger  should  prove 
real  or  in  fact  existing,  for  whether  real  or  apparent,  if  the 
circumstances  are  such  as  to  induce  a  belief  sufficiently  well 
grounded,  that  life  is  in  peril,  or  that  grievous  bodily  harm  is 
intended ;  and  to  be  threatened  with  a.  danger,  he  may  act  upon 
appearances  and  slay  his  assailant.  Yet  there  must  be  reason- 
able ground  for  his  belief  in  the  danger  threatened,  arising  out 
of  the  circumstances  in  which  he  is  placed,  otherwise  the  act  of 
taking  the  life  of  the  assailant  is  entirely  without  justification."2 

i  Darling  v.  Williams,  35  O.  S.  58.  "One  person  can  justify  the  taking  of 
the  life  of  another  in  self-defense,  only  where,  in  the  proper  exercise 
if  liis  faculties,  he  believes  in  good  faith,  and  upon  sufficient  or 
reasonable  grounds  of  belief,  that  he  is  in  imminent  danger  of 
death,  or  grievous  bodily  harm."     Id.;  Marts  v.  State,  20  0.  S.  162. 

2  Darling  v.  Williams,  35  O.  S.  62.     Boynton,  J. 

Sec.  1678.  Action  for  death  by  wrongful  act — By  administra- 
tor of  wife,  killed  at  steam  railroad  crossing, 
while  riding  with  husband,  who  is  driving 
team — Railroad  crossing. 

1.  Introducing  statement. 

2.  Failure  to  provide  gates,  to  give  learning  of  approach  of 

trains  at   crossings,  and  to   keep  watchman  thereat — 
Ordinance. 


DEATH    BY    WRONGFUL    ACT.  1403 

3.  Failure  of  driver  and  occupants  of  wagon  to  look  and 

listen  for  approaching  trains. 

4.  Administrator  may  recover  if  deceased  not  negligent. 

5.  Occupant  of  wagon  having  right  to  direct  or  control  one 

whose  negligence  contributes  to  injury — Husband  and 
wife. 

6.  If  husband  or  wife  saw  or  could  have  seen  train. 

7.  Misled  by  absence  of  watchman. 

8.  Failure  to  ring  bell  or  sound  whistle. 

9.  Vision  obstructed  by  buildings. 

10.  Contributory  negligence  of  beneficiaries. 

1.  Introductory  statement.  This  action  is  brought  by  plain- 
tiff as  administrator  of  S.  F.,  deceased,  seeking  to  recover  dam- 
ages for  pecuniary  injury  resulting  from  the  death  of  S.  F., 
deceased,  for  the  benefit  of  the  husband,  J.  F.,  and  the  children 
of  said  decedent  (naming  them). 

The  statutes  conferring  this  right  of  action  provide,  in  sub- 
stance, that  whenever  the  death  of  a  person  shall  be  caused  by 
wrongful  act,  neglect  or  default,  and  the  act,  neglect  or  default 
is  such  as  would,  if  death  had  not  ensued,  have  entitled  the  party 
injured  to  maintain  an  action  against,  and  recover  damages  in 
respect  thereof,  then  in  such  case  the  corporation  or  person  so 
liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for 
damages,  notwithstanding  the  death  of  the  person  injured. 

The  statute  also  provides  that  every  such  action  shall  be 
brought  in  the  name  of  the  personal  representative  of  the  de- 
ceased person  for  the  exclusive  benefit  of  the  husband  and  chil- 
dren, if  there  be  such,  of  the  person  whose  death  shall  be  so 
caused,  and  in  every  such  action,  the  jury  may  give  such  dam- 
ages not  exceeding  in  any  case  $ .  as  they  may  think  the 

proportion  to  the  pecuniary  injury  resulting  from  such  death, 
to  the  persons  respectively  for  whose  benefit  such  action  shall  be 
brought. 

2.  Failure  to  provide  gates,  to  give  warning  of  approach  of 
trains  at  crossing,  and  to  l;rrp  watchman  thereat — Ordinance. 
It  is  for  the  jury  to  determine  from  the  evidence  whether  the 


1404  INSTRUCTIONS   TO    JURY. 

defendant  was  negligent  as  claimed  in  failing  to  provide  gates 
at  the  railroad  crossing,  and  in  failing  to  give  warning  of  the 
approach  of  the  train  at  the  crossing,  and  in  failing  to  maintain 
and  keep  a  watchman  at  the  crossing  at  the  time  and  place  of  the 
injury,  and  also  whether  the  defendant  railway  company  violated 
the  ordinances  of  the  city  in  failing  so  to  do. 

If  the  jury  find  from  the  evidence  that  the  city  of  Columbus 
by  ordinance  provided  for  the  maintenance  of  gates  at  railway 
crossings  with  streets  and  highways  of  the  city,  and  provided 
for  the  maintenance  of  watchmen  at  crossings  of  steam  railways 
within  the  city,  as  well  as  for  the  ringing  of  bells  and  blowing  of 
whistles  to  give  warning  to  travelers  approaching  crossings  to 
pass  over  the  same,  you  are  instructed  that  it  is  proper  for  you 
to  consider  the  provisions  of  this  ordinance  with  all  the  other 
evidence  in  the  case  in  determining  whether  the  defendant  was 
guilty  of  negligence  in  one  or  more  of  the  particulars  mentioned 
and  set  forth  in  the  petition. 

The  jury  are  instructed,  however,  that  the  disobedience  of  the 
provisions  of  the  ordinance  by  the  railroad  company  would  not 
in  and  of  itself  constitute  negligence  on  the  part  of  the  defendant 
company  which  alone  would  entitle  plaintiff  to  recover  in  this 
action.  The  ordinance  of  the  city  is  to  be  regarded  merely  as  an 
expression  by  the  law-making  body  of  the  city  of  a  standard  of 
duty  required  by  it  in  respect  to  the  conduct  and  management 
of  railway  trains  under  such  circumstances.  But  as  stated,  this 
requirement  is  not  necessarily  controlling  in  your  deliberations 
upon  the  question,  it  being  entirely  within  your  province  and 
duty  to  determine  the  fact  of  negligence  or  not,  according  to  the 
evidence  as  you  see  it,  based  entirely  upon  your  own  opinion  and 
judgment  upon  all  the  evidence.  A  law  of  the  state  enacted  by 
the  legislature  prescribing  a  duty  under  such  circumstances,  if 
there  was  such  a  law,  would  be  binding  upon  the  jury  as  prescrib- 
ing the  standard  of  duty,  and  a  violation  thereof  would  consti- 
tute per  se  negligence.  But  such  is  not  the  rule  in  respect  to  an 
ordinance.  The  jury  are  permitted  to  consider  the  provisions 
of  this  ordinance  along  with  all  the  other  testimony  and  deter- 
mine the  fact. 


DEATH    BY    WRONGFUL    ACT.  1405 

3.  Failure  of  driver  and  occupants  of  wagon  to  look  and  listen 
for  approaching  train.  The  evidence  in  this  rase  tends  to  show 
that  S.  A.  F.  was  riding  with  her  husband,  J.  F.,  at  the  time  of 
the  injury  complained  of,  and  that  her  husband  was  driving, 
S.  A.  F.  heing  seated  in  the  wagon,  hut  that  she  was  not  driving 
the  horses. 

It  was  the  duty  of  the  driver  of  the  wagon,  as  well  as  that  of 
the  occupants  thereof,  in  approaching  the  railroad  crossing  known 
to  them,  to  look  and  listen  for  approaching  trains.  Where  the 
evidence  shows  that  both  the  driver  and  the  occupants  of  such  a 
wagon  fail  and  neglect  to  look  and  listen  for  approaching  trains, 
the  occupant  of  such  wagon  is  guilty  of  negligence  which  will 
prevent  a  recovery  of  damages  against  the  railroad  company  for 
injuries  received  at  the  crossing  by  a  collision  of  the  wagon  with 
an  approaching  train.  This  is  true  notwithstanding  the  railroad 
company  may  have  been  guilty  of  negligence  by  running  its  train 
at  an  unlawful  speed  within  the  city  limit,  failing  to  blow  the 
whistle  or  ring  the  bell  as  provided  by  ordinance,  or  failing  to 
maintain  a  watchman  or  gates  at  the  crossing  of  the  railroad 
with  the  streets. 

The  law  devolves  a  duty  upon  all  persons  approaching  a  known 
railroad  crossing,  to  exercise  ordinary  care  on  their  part  to  avoid 
coming  in  collision  with  the  engine  and  cars  at  the  crossing  and 
to  avoid  injury  therefrom.  It  is  incumbent  upon  the  jury, 
therefore,  to  look  to  the  evidence  and  determine  therefrom 
whether  or  not  S.  A.  F.  at  the  time  and  place  exercised  ordinary 
care  on  her  part  in  approaching  the  crossing;  and  if  you  find 
that  she  did  not  exercise  ordinary  care,  either  by  looking  or  lis- 
tening for  the  approach  of  trains,  or  if  she  saw  or  heard  the  train 
approaching,  and  failed  to  notify  her  husband  of  such  fact,  if 
under  the  circumstances  the  jury  find  that  she  could  by  the  exer- 
cise  of  ordinary  care,  have  seen  or  observed  the  train  in  time  to 
have  stopped  the  team  of  horses  before  going  upon  the  track,  or 
in  time  to  have  notified  her  husband  to  stop  the  team  before 
reaching  the  track,  and  that  she  failed  to  do  so,  then  the  jury 
are  instructed  that  such  neglect  on  her  part  will  constitute  negli- 


1406  INSTRUCTIONS   TO   JURY. 

gence  which,  if  it  was  concurrent  with  and  directly  contributed  to 
the  injury  causing  her  death,  then  plaintiff  may  not  recover. 

4.  Administrator  may  recover  if  deceased  not  guilty  of  negli- 
gence. If,  on  the  other  hand,  the  jury  find  that  S.  A.  F.,  the 
deceased,  under  all  the  circumstances  was  not  guilty  of  negli- 
gence in  approaching  the  crossing,  that  there  was  no  failure  on 
her  part  to  exercise  ordinary  care  in  approaching  the  crossing, 
and  that  the  defendant  was  guilty  of  negligence  in  any  one  or 
all  of  the  particulars  charged,  and  such  negligence  on  its  part 
was  the  proximate  cause  of  the  injury  producing  the  death,  then 
the  plaintiff  is  entitled  to  recover  provided  you  find  that  the 
persons  named  as  beneficiaries  in  the  petition  have  been  dam- 
aged, notwithstanding  you  may  find  that  the  husband,  J.  F.,  was 
himself  guilty  of  negligence  which  directly  contributed  to  the 
injury  which  caused  the  death  of  the  wife,  S.  A.  F.  That  is,  if 
the  wife  herself  was  in  the  exercise  of  ordinary  care  at  the  time 
of  the  approach  to  the  railroad  crossing  by  her  husband  while 
driving  the  vehicle,  and  if  she  was  not  guilty  of  negligence  di- 
rectly contributing  to  the  injury  producing  her  death,  then  the 
jury  are  instructed  that  the  law  of  imputed  negligence  would 
not  apply,  even  though  the  driver  of  the  vehicle  has  the  husband, 
unless  you  find  that  the  husband  as  such  driver  was  under  the 
control  and  authority  of  S.  A.  F.,  the  deceased  wife,  and  that 
J.  F.,  the  husband,  was  thereby  the  agent  of  the  wife. 

5.  Occupant  of  wagon  having  right  to  direct  or  control  one 
whose  negligence  contributes  to  injury — Husband  and  wife.  It 
is  the  law  of  this  state  that  where  an  occupant  of  a  wagon  stands 
in  the  relation  of  a  principal  to,  or  has  the  right  t  direct  or 
control  the  action  of  one  whose  negligence  contributed  to  the 
injury  of  the  occupant,  then  in  that  event,  the  law  ic  that  acts 
of  negligence  on  the  part  of  the  one  who  stands  in  the  relation 
of  an  agent,  may  be  imputed  to  the  occupant  or  principal,  and 
the  negligent  acts  of  the  agent,  if  the  same  caused  or  contributed 
to  the  injury,  would  be  a  bar  to  recovery  for  the  injuries  sustained 
by  any  such  principal.  So  the  jury  is  charged  that  it  was  the 
duty  of  both  the  husband  and  wife  in  approaching  the  crossing, 


DEATH    BY    WRONGFUL    ACT.  1407 

to  exercise  ordinary  care  under  the  circumstances,  to  look  and 
listen  for  the  approach  of  trains  at  the  crossing  before  under- 
taking to  cross  thereover. 

6.  //  husband  or  wife  saw  or  could  have  seen  train.  You  are 
instructed  that  if  the  wife  and  husband  when  about  to  cross  over 
the  railroad  track  at  the  crossing  saw  the  train  of  cars  approach- 
ing the  crossing  from  the  south,  or  if  by  the  exercise  of  ordinary 
care  they  could  have  seen  it,  at  the  time  and  place,  you  are  in 
that  event  instructed  that  if,  by  the  exercise  of  ordinary  care, 
they  could  have  stopped  the  team  of  horses  before  entering  upon 
the  crossing,  it  was  their  duty  to  do  so.  In  this  connection  the 
jury  are  instructed  that  when  a  train  is  approaching  near  a 
crossing  of  a  street  or  highway,  that  drivers  of  teams  approach- 
ing such  crossing,  are  bound,  in  the  exercise  of  ordinary  care 
under  the  circumstances  they  are  able  to  discover  and  learn  of 
the  approach  of  a  train,  to  stop.  Under  such  circumstances  the 
train  has  the  right  of  way  because  persons  driving  vehicles  may 
stop  within  a  few  feet,  while  the  train  may  not  stop  within  the 
same  distance  that  a  team  of  horses  can  be  stopped. 

7.  Misled  by  absence  of  watchman.  It  is  claimed  that  the 
deceased  wife  was  misled  by  the  absence  of  a  watchman  at  the 
crossing  at  the  time  of  the  accident.  It  is  also  claimed  that  the 
engineer  of  the  locomotive  either  failed  to  sound  the  whistle  or 
ring  the  bell  of  the  engine  while  approaching  the  crossing,  and 
that  there  were  obstructions  on  the  street  at  or  near  the  vicinity 
of  the  crossing  which  prevented  the  deceased  wife  from  seeing 
the  approach  of  the  train  from  the  south  toward  the  crossing. 

8.  Failure  to  ring  bell  or  sound  whistle.  The  jury  are  in- 
structed that  if  the  engineer  of  the  locomotive  did  not  ring  the 
bell  or  sound  the  whistle  while  approaching  the  crossing,  and 
that  there  was  no  watchman  at  the  crossing  at  the  time,  and  that 
the  engine  and  cars  were  running  at  a  rate  of  speed  in  excess  of 
that  provided  by  ordinance  of  the  city,  and  that  the  deceased. 
S.  A.  P.,  in  the  exercise  of  ordinary  care  was  misled  by  the 
absence  of  a  watchman  or  of  signals  from  the  locomotive,  and 
that   the   deceased,   S.   A.    F.,    as   a    reasonably   prudent   person 


1408  INSTRUCTIONS   TO   JURY. 

believed  that  she  could  cross  the  tracks  in  safety,  and  that  while 
attempting  so  to  do,  without  negligence  on  her  part,  was  struck 
and  killed  by  the  train,  and  that  such  death  was  caused  solely  by 
any  one  of  the  acts  of  negligence  charged  against  the  company 
which  were  a  direct  or  proximate  cause  of  the  injury  causing 
her  death,  then  the  plaintiff  is  entitled  to  recover  in  this  action. 
9.  Vision  obstructed  by  buildings.  There  is  some  evidence, 
tending  to  show  there  were  buildings  on  the  south  side  of  M. 
street  near  the  crossing,  and  that  there  was  a  moving  wagon  to 
the  south  side  of  M.  street,  at  or  near  the  point  just  east  of  the 
crossing  at  or  about  the  time  of  the  accident  in  question. 

The  jury  is  instructed  that  any  obstruction  which  obscures  or 
cuts  off  the  range  of  vision  of  approaching  trains  increased  the 
duty  of  vigilance  to  avoid  the  danger,  and  persons  about  to  pass 
over  crossings,  are  also  required,  if  the  view  is  obstructed,  to 
call  into  use  their  sense  of  hearing  and  to  listen  for  approaching 
trains.  In  other  words,  in  the  exercise  of  ordinary  care  by  per- 
sons approaching  a  known  crossing,  the  question  whether  such 
persons  did  or  did  not  exercise  ordinary  care,  will  depend  upon 
the  circumstances  at  or  about  the  vicinity  of  such  crossing  at 
the  time,  and  in  determining  the  question  of  negligence  and  also 
the  question  of  contributory  negligence,  you  will  take  into  con- 
sideration all  the  circumstances  surrounding  the  case  and  sur- 
rounding the  parties  at  the  time  of  the  injury  in  question. 

If  you  find  from  the  evidence  that  the  view  of  S.  A.  F.  was 
obstructed  as  she  approached  the  defendant's  track  by  the  build- 
ing on  the  south,  or  by  the  moving  wagon,  so  that  she  could  not 
see  far  up  the  track,  then  it  was  her  duty  to  listen  for  an  approach- 
ing train  before  going  upon  the  track.  And  if  she  failed  to  do 
so  without  reasonable  cause  therefor,  she  was  negligent,  and  if 
such  negligence  contributed  to  produce  her  death,  her  adminis- 
trator may  not  recover  in  this  case. 

10.  Contributory  negligence  of  beneficiaries.  The  beneficiaries 
named  in  the  petition  are  (J.  F.,  the  husband  of  decedent,  and 
the  three  sons  and  daughter  of  the  decedent) . 

The  jury  is  instructed  that  if  any  one  or  all  of  the  beneficiaries 
for  whose  benefit  this  action  is  brought  are  guilty  of  contributory 


DEATH    BY    WRONGFUL    ACT.  1409 

negligence  which  directly  contributed  to  the  injury  which  caused 
the  death  of  the  person  complained  of,  such  contributory  negli- 
gence will  defeat  the  right  of  any  such  beneficiary  so  guilty,  to 
recover  damages  therefor.  But  it  would  not  defeat  the  right  of 
other  beneficiaries,  if  such  there  are,  of  any  such  decedent  if 
they  have  sustained  damages  by  reason  of  the  death  by  negli- 
gence of  any  such  decedent.  Therefore,  the  jury  is  charged  that 
if  under  the  instructions  and  the  evidence  you  find  in  favor  of 
the  plaintiff,  it  will  be  your  duty  to  look  to  the  evidence  and 
determine  whether  J.  F.,  the  husband  of  the  decedent,  was  him- 
self guilty  of  negligence  directly  contributing  to  the  injury  which 
caused  the  death  of  bis  wife.  If  you  find  that  he  was  guilty  of 
such  proximate  contributory  negligence,  then  in  your  determina- 
tion from  the  evidence  as  to  the  amount  of  damages  that  the 
beneficiaries  are  entitled  to  recover  it  will  be  your  duty  not  to 
consider  J.  F.,  the  husband  of  the  decedent,  as  entitled  to  recover 
damages  on  account  of  the  death  of  his  wife. 

If  you  find  that  the  husband  was  not  guilty  of  negligence  con- 
tributing to  the  death  of  his  wife,  and  that  he  has  sustained 
pecuniary  injury  by  reason  of  her  death,  then  you  may  consider 
him  as  one  of  the  beneficiaries  entitled  to  recover  in  this  action. 
And  if  you  find  that  each  and  all  of  the  beneficiaries  named  in 
the  petition  have  sustained  pecuniary  injury,  and  you  Hud  for 
the  plaintiff,  it  will  be  your  duty  to  find  and  determine  what 
damages  respectively  and  beneficiaries  have  sustained. 

The  amount  of  damages  should  be  a  fair  and  just  compensation 
lor  the  pecuniary  injury  resulting  to  the  husband  and  children 
from  the  death  of  the  wife  and  mother.  In  no  case  can  you 
consider  the  bereavement,  mental  anguish  or  pain  suffered  by 
the  living  for  the  dead.  The  damage  is  exclusively  for  the 
pecuniary  loss;  not  a  solace.  It  is  the  reasonable  expectation 
of  what  the  husband  and  children,  if  they,  or  either  of  them  are 
entitled  to  recover,  might  have  received  from  the  deceased  had 
she  lived,  which  is  the  proper  subject  for  the  consideration  of  the 
jury,  what  the  husband  and  children  mighl  reasonably  exped  to 
receive  by  reason  of  the  services  of  ft.  A.  F.  in  a  pecuniary  point 


1410  INSTRUCTIONS   TO    JURY. 

of  view,  is  to  be  taken  into  consideration  in  determining  the 
amount  of  damages.  It  is  the  present  worth  as  a  gross  sum  of 
money  for  the  loss  of  the  services  of  the  wife  that  you  are  to 
consider.  It  is  that  sum  which,  put  in  money,  as  a  compensa- 
tion for  what  you  find  this  woman  would  reasonably  have  saved 
for  her  family.  In  determining  this,  all  these  questions  are  to 
be  considered;  that  is,  the  age,  health,  probability  of  length  of 
life,  if  she  had  not  died  as  a  result  of  the  injuries  stated  in  the 
petition.  In  no  event  may  there  be  a  recovery  for  a  sum  in 
excess  of  $10,000.00.1 

i  Fippen,  Admr.,  v.  T.  &  0.  C.  Ry.  Co.,  Evans,  J.,  affirmed  by  circuit  and 
supreme   court,   86  O.   S.   334. 

Sec.  1679.     Measure  of  damages  for  death  of  husband — Wife 
and  children  as  beneficiaries. 

The  measure  of  damages  in  this  action  is  the  pecuniary  injury 
only,  the  money  value  of  the  deceased  to  his  wife  and  children. 
This  is  the  law.  The  jury  can  not  consider  their  bereavement, 
or  the  mental  or  bodily  suffering  of  either  deceased  or  his  family. 
Nor  can  you  allow  anything  by  the  way  of  exemplary  damages. 
The  sole  question  of  the  jury  as  to  damages  is  what  actual  pecuni- 
ary loss  the  family  of  the  deceased,  named  in  the  petition,  has 
sustained  by  his  death ;  and  in  coming  to  a  conclusion  on  this 
matter,  the  jury  may  consider -the  habits  of  deceased  at  the  time 
of  his  death,  whether  or  not  he  was  an  industrious  man,  his 
physical  condition,  his  capability  of  earning  money,  the  manner 
in  which  he  provided  for  his  family,  his  expectancy  of  life,  and 
such  other  circumstances  presented  by  the  evidence  as  will  aid 
you  in  coming  to  a  correct  conclusion. 

Sec.  1680.  Another  form  as  to  measure  of  damages  for  death 
of  husband. 
Nothing  can  be  recovered  in  this  action  by  way  of  solace  to 
this  widow,  who  has  been  deprived  of  her  husband,  for  sorrow 
or  mental  anguish  which  would  result  from  that  to  her.  It  is 
purely  a  question  for  you,  if  you  reach  the  question  of  damages, 
as  to  the  pecuniary  damage  which  has  been  sustained.     And 


DEATH    BY    WRONGFUL    ACT.  1411 

should  you  reach  that  point  in  your  deliberations,  in  fixing  the 
amount  of  damage  which  has  been  sustained  by  the  death  of  M., 
you  may  fairly  take  into  consideration  such  facts  as  the  evidence 
disclose  as  to  M.'s  age,  his  health,  his  habits  of  industry,  and  all 
those  facts  which  bear  upon  the  question  as  to  what  his  life  in 
dollars  and  cents  was  probably  worth  to  his  next  of  kin,  and  that 
sum  would  represent  the  damage  that  the  plaintiff  would  be 
entitled  to  recover  in  this  case,  if  you  find  that  the  negligence 
has  been  proven  as  alleged,  and  that  such  negligence  caused  the 
death  of  M.1 
i  \\  m.  B.  Sanders,  Judge,  in  L.  S.  &.  M.  S.  Ry.  v.  Matthews,  51  O.  S.  565. 

Sec.  1681.    Damages  for  death  of  young  man,  to  mother,  sis- 
ters and  brother. 

The  damages  must  be  in  a  sense  speculative.  You  are  to 
estimate  what,  by  a  fair  judgment,  would  be  a  pecuniary  com- 
pensation to  the  mother  and  sisters  and  brothers  for  the  pecuniary 
loss  which  they  have  sustained  by  reason  of  the  death  of  the 
plaintiff's  intestate.  It  is  the  only  pecuniary  loss  which  they 
have  sustained.  You  are  to  reach  that  by  taking  into  considera- 
tion the  age  of  the  young  man,  his  earning  capacity,  his  proba- 
bility of  life,  and  to  include  in  your  verdict  such  amount  as  you 
think  the  mother,  brothers  and  sisters  would  have  received  from 
this  young  man  if  he  had  continued  to  live,  and  had  not  been 
killed  in  the  way  in  which  it  has  been  described  to  you.  This 
calls  for  the  exercise  of  a  fair  judgment  and  discretion.  You 
may  include  in  the  verdict  any  reasonable  probability  of  the 
accumulation  of  any  money  by  this  young  man  if  he  had  lived, 
and  the  benefit  from  such  accumulation,  if  he  had  died,  to  the 
persons  for  whose  benefit  this  action  is  brought.1 

>  Wm.  H.  Taft,  Judge,   in   C.   H.   &   D.  R.  R.   v    Kassen.   Supreme  Court, 
No.  1545. 

Sec.  1682.     Intelligent  discretion  to  be  used  in  assessment  of 
damages — Parents. 

You  will  assess  such  damages  in  that  case  as  in  your  judgment 
the  plaintiff  ought  to  recover,  limited,  however,  by  the  instruc- 


1412  INSTRUCTIONS   TO   JURY. 

tions  herein  given.  This  discretion  the  court  feels  should  be 
exercised  in  a  reasonable  manner.  It  must  be  an  honest,  intelli- 
gent discretion,  guided  by  the  fact's  that  are  given  to  you  in 
evidence.  This  amount  of  damages,  within  the  limits  of  the 
law,  and  which  is  fixed  by  the  statute  not  to  exceed  ten  thousand 
dollars,  is  to  be  ascertained  from  the  evidence  submitted  to  you. 
It  should  be  a  fair  and  just  compensation,  proportionate  to  the 
peculiar  injury  resulting  to  the  father  and  mother  from  such 
death ;  and  in  determining  this,  the  reasonable  expectations  of 
Avhat  the  beneficiaries  might  have  received  from  the  deceased  had 
she  lived  is  the  proper  subject  for  your  instruction;1  but  no 
damages  can  be  given  on  account  of  bereavement,  mental  suf- 
fering, or  as  a  solace  on  account  of  such  death.2  This  compensa- 
tion can  be  considered  by  you  only  as  a  hard  cash  transaction. 
In  determining  this  compensation,  the  intelligence,  health,  and 
age  of  the  deceased,  or  her  capacity  for  services  or  wage-earning, 
and  the  reasonable  expectation  of  what  the  father  and  mother 
might  have  received  from  the  deceased  had  she  lived,  the  age  of 
the  parents,  and  the  reasonable  expectancy  of  their  lives,  consid- 
ering their  ages,  health,  and  uncertainty  of  human  life,  may  be 
considered  by  you  as  shown  by  the  evidence,  which  evidence  must 
guide  you.3 

i  Grotenkemper  v.  Harris,  25  0.  S.  510. 

2  Davis  v.  Guarnieri,  45  0.  S.  478-9. 

3  Voris.  Judge,  in  Gaston  v.  Lake  Shore  R.   R.   Co.,  Lorain   County   Com- 

mon Pleas. 

Sec.  1683.     Damages  resulting  to  husband  and  children  for 
death  of  wife. 

"The  plaintiff's  damages,  if  any,  should  be  a  fair  and  just 
compensation  for  the  pecuniary  injury  resulting  to  the  husband 
and  children  from  the  death  of  the  wife.  In  no  case  can  the 
jury  consider  the  bereavement,  mental  anguish,  or  pain  suffered 
by  the  living  for  the  dead.  The  damage  is  exclusively  for  a 
pecuniary  loss,  not  a  solace.  The  reasonable  expectation  of  what 
the  husband  and  children  might  have  received  from  the  deceased, 


DEATH    BY    WRONGFUL    ACT.  1413 

had  she  lived,  is  a  proper  subject  for  the  consideration  of  the 
jury,  if  it  finds  for  the  plaintiff.  What  the  husband  and 
children  might  reasonably  expect  to  receive  by  reason  of  the 
services  of  this  woman  in  a  pecuniary  point  of  view  is  to  be  taken 
into  account  in  determining  the  amount  of  damages,  if  you  find 
for  the  plaintiff.  It  should  be  said  that  it  is  the  present  worth 
as  a  gross  sum  in  money,  for  the  loss  of  the  services  of  the  wife, 
that  you  are  to  find,  if  you  find  a  loss.  It  is  that  sum  which 
put  in  money  is  a  compensation  for  what  you  find  this  woman 
would  reasonably  have  saved  for  her  family.  Of  course,  in 
determining  this,  these  things  are  all  to  be  considered ;  that  is, 
the  age,  health,  probability  of  length  of  life,  or  death  if  she  had 
not  died  from  taking  this  drug."1 
i  From  Davis  v.  C.uarnieri,  45  0.  S.  470. 

Sec.  1684.  Measure  of  damages  for  death  of  child — Mental 
pain  and  anguish  not  elements. 
If  you  find  for  the  plaintiff,  in  assessing  damages  you  are 
not  to  consider  the  mental  pain  and  anguish  of  the  parents  on 
account  of  this  misfortune.  This  is,  as  the  law  provides,  only 
a  matter  of  dollars  and  cents,  and  you  should  allow  a  just  com- 
pensation for  the  pecuniary  injury  resulting  to  the  parents,  and 
in  getting  at  this,  you  will  as  best  you  can  get  at  what  is  the 
reasonable  expectation  of  pecuniary  advantage  to  them  from  the 
life  of  this  boy  if  he  had  lived,  and  it'  is  for  you  to  consider  all 
his  characteristics,  and  how  long  he  might  have  otherwise  lived, 
or  how  soon  have  died,  and  all  the  circumstances  that  throw  any 
light  on  this  part  of  the  controversy.  If  you  find  for  the  defend- 
ant you  will  simply  say  so.1 
i  Heisley,  J.,  in  Spink  case,  Cuyahoga  County. 

Sec.  1685.     Measure  of  damages — Earning  capacity. 

In  determining  the  amount  of  damages,  if  any,  in  a  case  like 
this,  with  reference  to  the  earning  capacity  of  the  deceased, 
the  jury  is  instructed  that  the  true  basis  for  recovery  for  the 

death  of if  what  you  may  find  that  the  decedent  would 

probably  have  contributed  to  his  family,  either  for  their  sup- 


1414  INSTRUCTIONS   TO   JURY. 

port  or  as  an  addition  to  his  estate.  The  measure  of  damages 
for  the  loss  of  human  life,  from  negligence,  so  far  as  future 
earnings  and  contributions  go  to  constitute  damages  is  the 
present  value  of  the  contributions  made  by  the  deceased  to 
the  beneficiaries,  ascertained  by  deducting  the  cost  of  his 
living  and  expenditures  from  the  net  income,  and  no  more  can 
be  allowed  than  the  present  worth  of  accumulations  arising  from 
such  net  income,  based  upon  the  expectancy  of  life.  That  is, 
having  ascertained  the  total  sum,  its  payment  must  be  antici- 
pated, and  no  more  than  the  present  worth  thereof  can  be  awarded 
in  damages.  The  discount  should  be  made  only  from  the  time 
it  is  found  that  such  contributions  would  have  been  actually 
made  had  decedent  lived,  and  not  at  the  end  of  the  decedent's 
expectancy.1 

i  Evans  v.  Railroad,  37  Utah,  431,  108  Pac.  638,  Ann.  Cas.  1912  C.  259. 
(Made  to  fit  ruling   in   this  case.) 


CHAPTER    XCII. 
DEEDS. 

SEC.  SEC. 

1686.  Execution  of,  under  duress —  1688.  Covenant        against       encuni- 

Threats.  brances — What        consti- 

16S7.  Capacity      to      make  —  Weak  tutes      breach — Damages 

mind — Old      age — Decla-  recoverable. 

rations    of    grantor    ad-  1689.  Mental  capacity  of  grantor. 

mitted  for  what  purpose. 

Sec.  1686.    Execution  of,  under  duress — Threats. 

"To  constitute  duress  which  would  avoid  the  deed,  it  is  not 
necessary  that  the  threats  be  of  legal  injury  alone;  but  if  the 
plaintiff,  the  wife  of  T.,  was  induced  to  execute  the  deed  by  the 
threats  of  her  husband,  that  he  would  separate  from  her  as  her 
husband  and  not  support  her,  it  is  duress  and  will  avoid  the  deed. 

"The  threats  must  be  such  as  she  might  reasonably  appre- 
hend would  be  carried  into  execution,  and  the  act  must  have 
been  induced  by  the  threats.  It  is  not  necessary  that  the  threats 
be  made  at  the  time  or  immediately  before  signing,  if  it  was 
within  such  time,  and  the  circumstances  prove  that  the  threats  or 
their  influence  properly  conduced  to  influence  the  plaintiff."1 

iTapley  v.  Tapley,  10  Minn.  458;  citing  2  Greenlf.  Ev.,  sec.  308;    1   Story 
Eq.  Jur.,  sec.  239. 

Sec.  1687.     Capacity  to  make — Weak  mind — Old  age — Decla- 
rations  of  grantor  admitted  for  what   pur- 
pose. 
The  court  says  to  you  that  no  general  rule  can  be  laid  down 
as  to  what  constitutes  undue  influence  in  this  class  of  cases 
further  than  this :    that  in  order  to  make  a  good  deed  the  man 
must  be  a  free  agent  and  feel  at  liberty  to  carry  out  his  own 
wishes  and  desires;    and  any  restraints,  threats  or  intimidations 
brought  to  bear  upon  the  grantor,  which  he  has  not  the  strength 
of  mind  or  will  to  resist  if  exercised  s<>  as  to  coerce  him  against 

1415 


1416  INSTRUCTIONS   TO   JURY. 

his  desire  and  purpose  in  the  making  of  the  deed,  is  undue 
influence  within  the  meaning  of  the  law.  And  the  amount  of 
undue  influence  which  would  be  sufficient  to  invalidate  a  deed 
may  vary  with  the  strength  or  weakness  of  the  mind  of  the 
vendor;  and  the  influence  which  would  subdue  and  control  a 
mind  and  will  naturally  weak,  or  one  which  had  become  im- 
paired by  age,  disease  or  other  cause,  might  have  no  effect  to 
overcome  a  mind  naturally  strong  and  unimpaired.  And 
whether  such  undue  influence  existed  in  this  case  must  be 
determined  by  the  jury  from  the  consideration  of  the  evi- 
dence.    *     *     * 

Evidence  of  the  declarations  of  the  vendor  at  times  other 
than  the  time  the  deed  was  made,  and  instances  occurring  at 
times  other  than  the  said  time,  are  competent  as  tending  to 
show  the  kind  of  a  person  he  was,  and  also  to  show  the  state 
of  his  mind,  its  strength  or  weakness,  its  susceptibility  to  influ- 
ence or  its  capacity ;  and  these  declarations  are  admitted  simply 
as  to  the  external  manifestations  of  the  vendor's  mental  condition 
and  not  as  evidence  of  the  truth  of  the  facts  he  states.1 

l  Gillmer,  J.,  in  Norris  v.  Western  Reserve  Seminary,  Trumbull  Co.  Com. 
Pleas. 

Sec.  1688.     Covenant  against  encumbrances — What  constitutes 
breach — Damages  recoverable.     • 

As  a  matter  of  law,  if  you  find  the  deed  was  duly  executed 
and  that  there  was  the  outstanding  mortgage  unsatisfied  at  the 
time  of  the  execution  thereof,  that,  even  if  nothing  had  been 
done  beyond  that,  would  constitute  a  breach  of  the  covenant 
against  encumbrances  which  would  entitle  the  plaintiff  to  recover 
nominal  damages  only.  But  if  the  person,  if  M.,  the  grantee 
in  the  deed,  was  obliged  to  pay  anything  beyond  that,  or  any- 
thing for  the  purpose  of  removing  the  encumbrances,  then,  to 
that  extent,  or  whatever  he  may  have  paid,  he  would  be  entitled 
to  recover  in  this  case. 

If  the  encumbrance  existed  at  the  time  of  the  execution  of 
the  deed,  the  breach  of  the  covenant  occurred  at  the  time  the 


DEEDS.  1417 

deed  was  executed,  and  the  grantee  would  be  entitled  to  recover 
for  whatever  amount  was  outstanding  and  a  lien  against  the 
property  at  that  time,  with  interest  upon  it  from  that  time  up 
to  the  first  day  of  this  term,  provided  he  was  obliged  to  pay 
it,  or  if  it  was  paid  out  of  the  proceeds  of  his  land  on  which 
that  was  found  to  be  a  lien,  no  matter  whether  that  proceeding 
was  instituted  by  the  party  holding  the  lien  or  somebody  else; 
or  if  you  find  in  this  case  that  proceedings  were  instituted  and 
money  was  paid,  and  that  amount,  is  all  that  was  in  dispute,  it 
is  necessary  that  you,  by  the  testimony,  should  find  the  amount 
the  party  was  obliged  to  pay,  or  what  was  paid  on  this  out- 
standing claim  out  of  the  proceeds  of  the  land  of  M.;  to  that 
amount  he  would  be  entitled,  with  interest  upon  it  up  to  the  first 
day  of  this  term. 

If  you  find  he  sustained  any  other  damage  in  consequence 
of  this  outstanding  lien,  if  you  find  he  was  damaged  in  other 
ways,  directly,  and  there  is  direct  and  positive  proof  upon  the 
subject  that  he  was  otherwise  damaged,  then  you  may  take  into 
consideration  other  damage,  if  any,  which  he  may  have  sus- 
tained and  which  are  clearly  shown  by  the  proof  in  this  case. 
But  if  not,  you  should  return  a  verdict,  if  you  find  this  was 
not  so  paid,  then  you  should  return  a  verdict  for  the  defendant ; 
but  if  you  find  it  was  paid  out  of  this  fund,  you  should  return 
a  verdict  for  the  plaintiff,  and  your  verdict  should  be  for  the 
amount  which  was  found  by  the  court  at  the  time  the  proceed- 
ings were  had  to  foreclose  this  mortgage,  and  which  was  found 
by  this  court  to  be  a  lien  on  this  property.  If  that  amount  was 
paid,  he  would  be  entitled  to  recover  at  your  hands  that  amount, 
with  interest  upon  it  to  the  first  day  of  this  term,  from  the  time 
of  such  payment.1 

i  Marlow  v.  Thomas,  Supreme  Court,  unreported,  Xo.  1918.  By  Johnston, 
J.,  in  Mahoning  Co.  C.  P.  A  covenant  against  an  incumbrance  i> 
broken  as  soon  as  an  incumbrance  in  fact  exists,  at  least  for  nom- 
inal damages.  Hall  v.  Plaine,  It  0.  S.  417:  Rawle  on  Cov.  (5th  ed.) 
sec.  70  and  cases  cited.  An  action  for  nominal  damages  may  be 
maintained  even  without  eviction.  Stambaugh  v.  Smith,  23  0.  S. 
584. 


1418  INSTRUCTIONS   TO   JURY. 

The  measure  of  damages  for  a  breach  of  a  covenant  against  incumbrances 
is  the  amount  which  would  be  required  to  be  paid  to  extinguish 
the  incumbrance,  also  any  consequential  damages  directly  resulting 
from  the  existence  of  the  incumbrance.  Wood's  Mayne  on  Damages, 
sees.  259  and  260;  Delaverger  v.  Norris,  7  Johns.  358;  Hall  v. 
Dean;  13  Johns.  105,  2  Wheat.  (U.  S.)  45;  Kawle  on  Cov.  of  Title, 
sec.  86. 


Sec.  1689.    Mental  capacity  of  grantor. 

The  law  presumes  that  J.  N.,  the  grantor,  had  sufficient  capac- 
ity to  make  such  a  deed,  and  therefore  the  burden  is  upon  the 
plaintiff  to  show  by  a  preponderance  of  the  evidence,  before  he 
can  recover,  that  J.  N.,  the  grantor,  had  not  sufficient  mental 
capacity  to  make  the  deed  or  instrument  in  question. 

Before  a  man  can  legally  convey  his  property,  he  must  have 
memory.  A  man  in  whom  this  faculty  is  totally  extinguished 
can  not  be  said  to  possess  understanding  to  any  degree  what- 
ever, or  to  any  purpose,  but  his  memory  may  be  imperfect,  it 
may  be  greatly  impaired  by  age  or  disease,  he  may  not  be  able 
at  all  times  to  recognize  the  names  of  persons  or  families  of 
those  with  whom  he  has  been  intimately  acquainted ;  and  he 
may  at  times  ask  and  repeat  questions  that  have  been  answered, 
and  yet  his  understanding  may  be  sufficiently  sound  for  many 
of  the  ordinary  transactions  of  life,  including  the  disposal  of 
his  property. 

The  question  is  not  so  much  what  was  the  degree  of  memory 
possessed  by  the  grantor,  as  it  is  this :  Did  he  have  the  requisite 
mental  capacity,  and  was  he  a  free  agent  in  making  the  convey- 
ance at  the  time  he  is  said  to  have  executed  it? 

1.  Old  age  alone.  The  power  to  make  a  valid  deed  is  not  de- 
stroyed or  lost  by  old  age  alone ;  nor  is  it  denied  to  him  who  has 
attained  the  utmost  verge  of  life.  Old  age  does  not  always  or 
necessarily  extinguish  the  light  of  intellect.  It  is  in  some  men 
more  brilliant  that  it  is  in  others  at  much  earlier  age.  The  law 
looks  only  to  the  competency  of  the  understanding ;  neither  age 
nor  sickness,  nor  extreme  distress  or  debility  of  body  will  be  suf- 
ficient to  render  a  deed  invalid,  provided  the  grantor  at  the  time 


DEEDS. 


1419 


it  was  executed  did  know  what  was  being  done,  and  did  under- 
stand the  nature  of  the  act,  and  did  have  sufficient  mental  capac- 
ity to  execute  the  deed ;  but  the  age  of  the  individual,  if  consider- 
able, is  of  importance  and  should  be  carefully  considered  by 
you  as  bearing  on  this  question. 

2.  Inability  to  recognize  acquaintances.  An  habitual  inability 
to  recognize  neighbors  and  acquaintances  would  be  strong  evi- 
dence of  a  sunken  intellect  and  should  be  carefully  considered 
by  you;  but  a  few  occasional  instances  of  this  kind  may  show 
in  an  old  gentleman  a  memory  weakened  but  not  destroyed,  im- 
paired but  not  extinguished.  The  want  of  recollection  of  names 
is  one  of  the  earliest  symptoms  of  decay  of  memory,  but  its 
failure  may  exist  to  a  very  great  degree  and  yet  the  solid  power 
of  understanding  remain.     *     *     * 

3.  Opinions  of  ivitnesses.  The  mere  opinions  of  witnesses  are 
entitled  to  little  or  no  weight  unless  they  are  supported  by  good 
reasons  founded  on  facts  which  warrant  them  in  the  opinion  of 
the  jury.  If  the  reasons  are  frivolous  on  inconclusive,  or  if 
founded  on  a  wrong  basis,  the  opinions  of  such  witnesses  are  of 
but  little  aid  to  the  triers  of  the  cause.  Every  man  having 
sufficient  mental  capacity,  and  not  under  any  undue  influence, 
is  the  lawful  disposer  of  his  own  property,  and  he  has  the  right 
to  dispose  of  it  as  may  seem  best  to  him. 


CHAPTER   XCIII. 
DRUGGIST. 

SEC. 

1690.  Ordinary  degree  of  skill  required. 

Sec.  1690.     Ordinary  degree  of  skill  required. 

The  jury  is  instructed  that  a  druggist  or  registered  apothe- 
cary, or  any  person  who  undertakes  to  act  in  the  capacity  of  a 
qualified  druggist  in  preparing  medicines  and  rilling  physicians' 
prescriptions,  is  required  by  law,  to  possess  a  reasonable  and 
ordinary  degree  of  knowledge  and  skill  with  respect  to  the  phar- 
maceutical duties  which  he  professes  to  be  competent  to  per- 
form. He  is  not  required  to  possess  the  highest  degree  of 
knowledge  and  skill  to  which  the  art  and  science  may  have 
attained.  He  is  not  required  to  have  skill  and  experience  equal 
to  the  most  eminent  in  his  profession.  He  is  only  required  to 
have  that  reasonable  degree  of  learning  and  skill  which  is  ordi- 
narily possessed  by  other  druggists  in  good  standing  as  to  quali- 
fications in  similar  communities. 

The  law  imposes  upon  a  druggist  the  obligation  to  exercise 
all  reasonable  and  ordinary  care  and  prudence  in  applying  his 
knowledge  and  skill  in  compounding  medicines,  filling  prescrip- 
tions and  performing  all  other  duties  of  an  apothecary.  He  is 
not  bound  to  use  extraordinary  care  and  prudence,  or  a  greater 
degree  of  care  than  is  ordinarily  exercised  by  other  qualified 
druggists.  Ordinary  skill  is  the  test  of  qualification  and  ordi- 
nary care  is  the  test  of  the  application  of  it.  In  applying  his 
knowledge  and  exercising  care  and  diligence,  the  druggist  is 
bound  to  give  his  patrons  the  benefit  of  his  best  judgment.  For 
in  pharmacy  there  is  a  class  of  cases  in  which  judgment  and  dis- 
cretion must  be  exercised.  The  druggist  is  not  necessarily 
responsible  for  an  error  of  judgment  which  is  reconcilable  anrl 
1420 


DRUGGIST.  1421 

consistent  with  the  exercise  of  ordinary  care  and  skill.  He  does 
not  absolutely  guarantee  that  no  error  shall  ever  be  committed 
in  the  discharge  of  his  duties.  He  may  commit  an  error  or 
mistake  which  may  not  be  held  to  be  actionable  provided  he 
exercises  ordinary  care  and  judgment.1 

i  Tremblay    r.   Kimball,   107   Me.  53,  77   Atl.  405;    Am.  Ann.   Cas..    1912   C. 
1215. 


CHAPTER   XCIV. 
DYNAMITE— UNLAWFUL  USE  OR  POSSESSION  OF. 

gEC<  3.  Intent    to    make    unlawful 
1691.  Having    possession    of    dyna-  use  of. 

mite  for  unlawful  use —  4.  Malice  and   intent. 

Unlawfully        depositing  5.  Alibi. 

same.  6.  Defendant  under  influence 

1.  The  statute.  of  cocaine. 

2.  The   charge   and   elements  7.  Opinion     evidence     as     to 

of  crime.  mental   capacity. 

Sec.  1691.     Having  possession  of  dynamite  for  unlawful  use — 
Unlawfully  depositing  same. 

1.  The  statute. 

2.  Charge  and  elements  of  crime. 

3.  Intent  to  make  unlawful  use  of. 

4.  Malice  and  intent. 

5.  Alibi. 

6.  Defendant  under  influence  of  cocaine. 

7.  Opinion  evidence  as  to  mental  capacity. 

1.  The  statute.  The  statutes  of  this  state  declare,  in  substance, 
that:  "Whoever  has  in  his  possession  or  under  his  control 
dynamite  or  other  nitro  explosive  compound  for  other  than  a 
lawful  use,  or  places  or  deposits  it  upon  or  about  the  premises 
of  another  without  his  consent,  shall  be  punished,"  etc.  [Code, 
sec.  12533.] 

2.  The  charge  a<nd  elements  of  crime.  Coming:  now  to  the 
charges  in  the  indictment  in  the  first  count,  the  defendant  is 
charged  with  having  dynamite  in  his  possession  and  control  for 
other  than  a  lawful  use,  to-wit,  for  the  unlawful  use  of  mali- 
ciously destroying  the  property  of  said  Railway  Company,  known 
as  the  South  Street  Car  Barn  of  said  Company.  In  the  second 
count  the  defendant  is  charged  with  unlawfully  placing  and 
depositing  dynamite  upon  certain  premises  of  said  Street  Rail- 
way &  Light  Company,  known  as  the  South  Car  Barns  of  said 
Company,  without  its  consent.     Before  the  defendant  can  be 

1422 


DYNAMITE — UNLAWFUL  USE  OR  POSSESSION  OF.  142o 

convicted  on  either  of  the  counts  charged  in  the  indictment, 
there  are  certain  material  facts  which  it  is  essential  for  the  state 
to  establish  beyond  a  reasonable  doubt. 

Regarding  the  first  count,  the  material  facts  are  these :  First. 
That  the  crime  charged  in  said  count  was  committed  by  the 
defendant  in  Franklin  County,  Ohio,  on  or  about  the  time 
charged  in  the  indictment.  The  exact  time,  gentlemen,  is  not 
essential,  so  that  it  is  about  the  time  charged  in  the  indictment. 
Second.  That  the  defendant  had  dynamite  in  his  possession  or 
under  his  control.  Third.  That  the  dynamite  so  in  his  posses- 
sion or  under  his  control  was  for  other  than  a  lawful  use. 
Fourth.  That  the  unlawful  use  was  that  of  maliciously  destroy- 
ing the  property  of  the  Columbus  Railway  &  Light  Company,  a 
corporation.  Fifth.  That  such  property  was  the  South  Street 
Car  Barns  and  belonged  to  said  Columbus  Railway  &  Light 
Company,  as  alleged.  Regarding  the  second  count,  the  material 
facts  are  these :  First.  That  the  crime  charged  in  that  count 
was  committed  within  the  body  of  Franklin  County,  Ohio,  by 
the  defendant  about  the  time  charged.  Second.  The  placing  or 
depositing  of  the  dynamite  by  the  defendant  on  the  premises 
belonging  to  the  Columbus  Railway  &  Light  Company,  a  corpora- 
tion, to-wit,  its  South  Street  Car  Barns,  as  alleged.  Third.  So 
placing  or  depositing  said  dynamite  without  the  consent  of  the 
said  company. 

Under  these  two  counts  in  the  indictment  you  may,  if  the 
evidence  justifies  it,  find  the  defendant  guilty  upon  both  counts, 
or,  if  the  evidence  justifies  it,  find  the  defendant  guilty  upon 
either  one  of  the  two  counts,  and  not  guilty  upon  the  other,  or 
you  may  find  the  defendant  not  guilty  upon  either  count.  It  is 
not  essential  to  a  verdict  of  guilty  on  either  count  that  the 
dynamite  should  have  exploded  or  injured  any  of  the  property 
of  the  Railway  &  Light  Company.  It  is,  however,  essential,  so 
far  as  the  first  count  is  concerned,  that  the  defendant  had  it  in 
his  possession  or  under  his  control  for  the  unlawful  use  ;is 
alleged  ;  and,  so  far  as  the  second  count  is  concerned,  that  he 
placed  or  deposited  it  on  the  premises  of  the  Street  Railway  Com- 
pany without  its  consent,  as  alleged. 


1424  INSTRUCTIONS   TO   JURY. 

3.  Intent  to  make  unlawful  use  of.  To  constitute  the  offense, 
as  charged  in  the  first  count,  of  having  said  dynamite  in  de- 
fendant's possession  for  the  unlawful  use  as  alleged,  it  is  es- 
sential that  he  should  have  had  the  same  in  his  possession, 
with  the  criminal  or  evil  intent  of  making  the  unlawful  use 
of  it  as  charged.  If  you  find  that  he  had  the  dynamite  in 
his  possession,  but  not  with  the  criminal  intent  of  unlawfully 
using  it  to  maliciously  destroy  the  barn  of  said  company  as 
charged,  he  is  not  guilty.  But  if  he  had  the  dynamite  in 
his  possession  with  the  evil  intent  of  using  it  for  the  malicious 
destruction  of  said  barn,  as  charged,  and  the  other  material 
elements  constituting  said  crime  are  proved,  you  will  be  war- 
ranted in  finding  him  guilty  as  charged  in  the  first  count. 

If  the  defendant  had  dynamite  in  his  possession  or  under  his 
control,  purchased  by  him  at  the  request  of  and  for  other 
persons  whom  he  did  not  know,  and  if,  while  he  had  such  dyna- 
mite in  his  possession  or  under  his  control,  he  was  entirely 
innocent  of  the  fact  that  such  dynamite  was  to  be  used  for  an 
unlawful  purpose  by  such  other  persons,  defendant  is  not  guilty 
of  having  the  dynamite  in  his  possession  or  under  his  control 
for  the  unlawful  use  charged  in  the  first  count,  although  the 
persons  for  whom  defendant  bought  such  dynamite  may  have 
used  it  for  such  unlawful  purpose.  Whether  or  not,  however, 
the  defendant  was  innocent  of  the  use  to  which  said  dynamite 
was  to  be  or  was  put  are  matters  for  you  to  determine  under  all 
the  facts  and  circumstances  of  the  case.  Furthermore,  to  con- 
stitute the  offense,  as  charged  in  the  second  count,  of  placing 
dynamite  upon  the  company's  premises,  without  its  consent,  it 
is  essential  that  defendant  should  have  placed  it  there,  as  alleged, 
having  the  criminal  or  evil  intent  of  doing  so.  If  he  had  no 
such  intent,  he  is  not  guilty.  But  if  he  had  such  intent  and  the 
other  elements  constituting  the  offense  are  proved,  you  will  be 
warranted  in  finding   defendant  guilty   on   the   second   count. 

4.  Malice  and  intent.  In  order  to  show  the  possession  of  said 
dynamite  by  defendant  for  maliciously  destroying  the  railway 
company's  street  car  barn,  as  alleged,  in  the  first  count,  it  is  not 
necessary  to  show  motives  of  personal  malice  or  ill  will  by  de- 


DYNAMITE UNLAWFUL  USE  OR  POSSESSION  OP.  1425 

fendant  towards  said  company;  but  to  show  a  wanton  and 
willful  disposition  by  defendant  to  injure  the  said  railway 
company  in  the  manner  alleged  without  justification  or  excuse 
is  all  that  is  required. 

Malice  and  intent  are  operations  of  the  mind,  and  are  not 
usually  proved  by  direct  or  positive  evidence.  In  determining 
whether,  if  at  all,  there  was  malice,  and  whether  there  was  a 
criminal  intent  on  the  part  of  the  defendant  in  doing  the  acts 
charged  in  the  indictment,  if  he  committed  such  acts,  or  any 
of  them,  you  will  take  into  consideration  all  the  facts  and  cir- 
cumstances attending  the  alleged  transaction,  including  the 
declarations,  if  any,  of  the  defendant,  and  all  of  the  facts  and 
circumstances  in  the  case. 

5.  Alibi.  One  of  the  defenses  introduced  by  the  defendant  is 
what  is  known  in  law  as  an  alibi ;  that  is,  that  the  defendant  was 
at  another  place  at  the  time  of  the  commission  of  the  crime 
charged  in  the  indictment.  The  court  instructs  you  that  such 
a  defense  is  as  proper  and  as  legitimate,  if  proved,  as  any  other ; 
and  all  evidence  bearing  on  that  point  should  be  carefully  con- 
sidered by  the  jury.  If,  in  view  of  all  the  evidence  the  jury 
have  any  reasonable  doubt  as  to  whether  the  defendant  was  in 
some  other  place  when  said  crime  charged  in  the  indictment  was 
committed,  you  should  give  the  defendant  the  benefit  of  the 
doubt  and  find  him  not  guilty. 

The  court  instructs  you  further  that  the  defendant  need  not 
prove  such  alibi  by  a  preponderance  of  the  evidence;  neither  does 
he  need  to  establish  it  beyond  a  reasonable  doubt;  but  if  the 
evidence,  as  introduced,  creates  in  your  mind  a  reasonable  doubt 
as  to  the  defendant's  guilt,  then  your  verdict  should  be  not 
guilty,  even  though  you  should  not  be  able  to  find  that  the  alibi 
was  fully  proved. 

You  will,  therefore,  look  at  all  the  evidence  in  the  case  and 
determine  whether  or  not  the  accused  might  have  been  at  the 
place  he  claims  at  the  time  shown,  and  yet  might  have  committed 
the  alleged  crimes,  or  either  of  them  charged  in  said  indictment, 
ami  determine  whether  such  evidence  of  alibi  along  with  all  the 
Other  evidence  in  the  case,  raises  a.  reasonable  doubt'  in  your  mind 


1426  INSTRUCTIONS   TO   JURY. 

of  the  defendant's  guilt.  If  it  does  not,  the  defense  of  alibi 
is  not  made  out.  If  it  does,  the  defendant  is  entitled  to  an 
acquittal. 

6.  Defendant  under  influence  of  cocaine.  It  is  claimed  on  the 
part  of  the  defendant  that  at  the  time  the  crime  charged  in  the 
indictment  are  alleged  to  have  been  committed,  the  defendant 
was  under  the  influence  of  a  drug  known  as  cocaine,  and  that  he 
was  on  this  account,  and  by  reason  of  his  mental  infirmities  pro- 
duced by  disease,  legally  irresponsible  for  the  acts  or  either  of 
them.  The  court  instructs  you  that  every  individual  of  mature 
years,  charged  with  the  commission  of  a  crime,  is  presumed  to  be 
sane  and  to  be  responsible  for  the  consequences  of  his  own 
voluntary  acts.  The  burden  of  proving  that  the  defendant  was 
not  in  a  legal  sense  sane  and  responsible  for  his  acts,  is  upon  the 
defendant,  and  must  be  proved,  to  make  it  available  as  a  defense, 
by  a  preponderance  of  the  evidence.  However,  no  man  should  be 
convicted  and  punished  for  crime  unless  he  is  a  responsible 
moral  agent.  In  order  to  constitute  a  crime,  a  man  must  have 
intelligence  or  capacity  enough  to  have  a  criminal  intent  and 
purpose;  and  if  his  reason  and  mental  powers  are  either  so 
deficient  that  he  has  no  will — no  conscience  or  controlling  mental 
p0Wer — or  if  through  the  overwhelming  violence  of  mental 
disease,  his  intellectual  power  is  obliterated,  he  is  not  a  respon- 
sible moral  agent,  and  is  not  punishable  for  criminal  acts.  Mere 
mental  weakness,  however,  does  not  exempt  one  from  responsi- 
bility for  crime,  when  there  is  sufficient  capacity  to  know  that 
the  act  is  wrong,  and  to  abstain  from  its  commission,  although  to 
exempt  one  from  such  responsibility  it  is  not  necessary  that  he 
shall  have  been  totally  deprived  of  his  reason. 

Furthermore,  the  court  instructs  you  that'  under  our  law  the 
voluntary  use  of  cocaine  whereby  one  comes  under  its  influence, 
is  no  excuse  for  the  commission  of  a  crime,  short  of  actual 
insanity  or  loss  of  reason.  One  otherwise  responsible  for  crime 
is  not  exempt  from  such  responsibility  by  reason  of  his  addiction 
to  the  use  of  cocaine  at  the  time  of  its  commission,  unless  the 
drug  has  produced  disease  which  has  so  far  perverted  or  de- 


DYNAMITE — UNLAWFUL  USE  OR  POSSESSION  OP.  1427 

stroyed  the  mental  faculties  as  to  render  the  person  so  afflicted, 
incapable,  by  reason  of  such  disease,  of  knowing  the  nature  and 
consequences  of  the  act,  and  of  distinguishing  between  right  and 
wrong  in  its  commission,  or  so  far  destroyed  his  will  power  as 
to  be  able  to  refrain  from  doing  the  act,  if  he  had  chosen  to  do  so. 

Applying  this  rule,  if  you  determine  that  the  defendant  com- 
mitted the  alleged  acts  charged  in  either  or  both  of  said  counts, 
you  will  inquire  whether  or  not  he  was  at  the  time  addicted  to 
the  cocaine  habit  and  under  its  influence.  If  you  determine  that 
the  defendant  was  not  addicted  to  the  habit,  or  under  its 
influence,  you  need  not  consider  this  feature  further.  But  if 
you  find  that  he  was  addicted  to  such  habit,  you  will  then  inquire 
whether  or  not  the  drug  itself,  or  it  along  with  other  mental 
infirmities,  had  produced  a  disease  which  so  far  perverted  or 
destroyed  his  mental  faculties  as  to  render  him  incapable  by 
reason  of  such  disease  or  disordered  condition,  of  knowing  the 
nature  and  consequences  of  the  act,  or  acts,  and  of  distinguishing 
between  right  and  wrong  in  their  commission.  If  the  drug  itself, 
or  it  along  with  other  mental  infirmities,  had  not  so  affected  him, 
you  need  not  consider  this  feature  further.  But  if  the  drug 
itself,  or  it  along  with  other  mental  infirmities,  had  so  affected 
him,  he  is  not  guilty. 

7.  Opinion  evidence  as  to  mental  capacity.  On  the  ques- 
tion of  the  defendant's  legal  responsibility  and  of  the  use 
and  effect  of  cocaine,  opinion  evidence  has  been  offered,  and 
on  these  questions  persons  of  experience  in  the  medical  pro- 
fession have  been  called,  to  whom  questions  embodying  certain 
statements  of  facts  in  the  case  have  been  put,  and  upon  which 
statements  of  facts  the  experts  have  given  their  opinions.  This 
is  proper  testimony  for  you  to  consider  in  determining  the  guilt 
or  innocence  of  the  accused.  However,  if  the  statements  of  facts 
as  you  find  them  to  have  been  established  by  the  testimony  sub- 
stantially differ  from  the  statements  of  fact  as  propounded  by 
the  experts  and  upon  which  they  base  their  opinions,  then  the 
opinions  are  not  entitled  to  any  weight  in  determining  the  ques- 
tions involved  in  such  statements.  But  if  the  questions  to  the 
experts  embody  the  facts  as  you  find   thom  to  exist  from  the 


1428  INSTRUCTIONS   TO   JURY. 

testimony,  then  you  should  give  them  such  weight  as  in  your 
judgment,  in  the  light  of  all  the  testimony,  they  would  be 
entitled  to. 

As  heretofore  stated,  the  burden  of  establishing  the  defense  of 
legal  irresponsibility,  and  by  reason  of  the  use  of  cocaine  and 
mental  infirmities  of  the  defendant,  is  upon  the  defendant,  and, 
to  entitle  him  to  an  acquittal  upon  this  ground,  this  defense  must 
be  established  by  a  preponderance,  that  is  to  say,  the  greater 
weight  of  the  evidence.  However,  if  upon  the  whole  testimony, 
including  the  evidence  relating  to  legal  irresponsibility  by  reason 
of  the  use  of  cocaine,  and  mental  infirmities  of  the  defendant, 
and  the  evidence  relating  to  the  defense  of  alibi,  you  have  a 
reasonable  doubt  as  to  the  defendant's  guilt  either  upon  the 
first  or  second  counts  of  said  accident,  it  will  be  your  duty  to 
acquit  the  defendant  upon  such  count  or  counts  as  you  may  have 
such  doubt. 

Gentlemen,  I  need  not  call  your  attention  to  the  fact  that  you 
are  not  concerned  with  regard  to  the  strike,  or  any  of  its  inci- 
dents, or  with  the  question  of  who  was  right  or  who  was  wrong 
in  that  controversy.  The  matter  you  have  to  determine  is 
between  the  State  of  Ohio  and  this  defendant.  Is  he  guilty  or 
not  guilty  of  one  or  both  of  the  counts  charged  in  this  indictment? 

If  you  find  that  the  defendant,  in  this  county,  on  or  about  the 

day  of  ,   19 — ,  had  dynamite  in  his  possession  or 

under  his  control  for  the  unlawful  use  and  with  the  intent  as 
alleged  in  the  indictment,  to-wit,  the  unlawful  use  of  maliciously 
destroying  the  South  Street  Car  Barns  belonging  to  the  said 
Columbus  Railway  &  Light  Company,  as  charged,  it  will  be  your 
duty  to  find  the  defendant  guilty  upon  the  first  count.  But  if 
it  is  not  proved,  either  that  the  crime  as  charged  was  committed 
in  this  county,  or  that  the  defendant  had  the  dynamite  in  his 
possession  or  under  his  control,  as  charged ;  or  that  the  defendant 
had  it  for  the  unlawful  use,  as  charged,  it  will  be  your  duty  to 
find  the  defendant  not  guilty. 

Regarding  the  second  count,  the  court  instructs  you  that  if 
you  find  that  on  or  about  the day  of ,  19 — ,  the  defend- 
ant placed  or  deposited  dynamite,  as  charged,  on  the  premises, 


DYNAMITE UNLAWFUL  USE  OR  POSSESSION  OF.  1429 

to-wit,  on  the  South  Street  Car  Barns  of  the  said  Street  Railway 
Company  without  its  consent,  as  alleged,  that  he  did  it  unlaw- 
fully and  purposely,  it  will  be  your  duty  to  find  him  guilty  on 
the  second  count.  But  if  you  find  that  it  is  not  proved  either 
that  the  crime  was  committed  in  this  county,  or  that  the  dynamite 
was  placed  on  the  premises  of  said  railway  company,  as  charged ; 
or,  that  it  was  done  without  the  consent  of  the  company,  it  will 
be  your  duty  to  find  him  not  guilty.1 
i  State  v.  Strader,  Franklin  County  Com.  PL,  Rogers,  J. 


CHAPTER  XCV. 
EJECTMENT— ADVERSE  POSSESSION. 

SEC.  SEC. 

1692.  What  constitutes  adverse  pos-       1696.  Lines  between  owners. 

session.  1697.  Abandonment — What      consti- 

1693.  It    need    not    be    held    under  tutes. 

color  of  title.  1698.  Adverse    possession    may    ex- 

1694.  Meaning    of    continuous   pos-  tend  to  what. 

session.  1699.  Mistake    in    boundary    line — 

1695.  Adverse     possession — Occupa-  Nature  of  occupancy. 

tion    must    be    of    some        1699a.  Declarations     as     to     owner- 
well-defined   limits.  ship. 

Sec.  1692.    What  constitutes  adverse  possession. 

The  period  of  prescription  in  Ohio,  by  which  one  acquires  an 
easement  or  title  in  land,  is  twenty-one  years.  This  is  called 
adverse  possession,  and  what  constitutes  adverse  possession  is 
a  question  of  fact  for  the  jury  to  decide  under  proper  instruc- 
tions by  the  court.1 

It  is  not  necessary  to  constitute  adverse  possession,  that  a 
person  shall  merely  be  in  possession  for  a  period  of  twenty-one 
years,  but  there  are  certain  requisites  that  must  accompany  that 
possession,  which  will  now  be  explained  to  you.  The  fact  of 
possession  per  sc,  is  only  an  introductory  fact  to  a  link  in  the 
chain  of  title  by  possession,  and  will  not  simply  of  itself,  however 
long  continued,  bar  the  right  of  entry  of  him  who  was  seized, 
and,  of  course,  creates  no  positive  title  in  any  case.  The  reason 
of  this  is,  that  it  may  have  been  possession  with  permission ;  and 
if  the  person  in  possession  has  offered  to  purchase  the  title  of 
another  claimant,  it  will  not  be  adverse.  To  have  the  effect  of 
creating  title  by  adverse  possession,  the  possession  must  not  only 
have  been  actual,  exclusive,  open,  and  notorious,  with  claim  of 
title,  but  it  must  also  have  been  adverse  during  the  whole  period 
1430 


EJECTMENT   AND  ADVERSE  POSSESSION.  1431 

of  twenty-one  years.  It  is  not  necessary,  however,  that  the  parly 
should  live  on  the  land,  but  only  so  he  exercises  absolute  control 
over  it.  To  constitute  adverse  possession,  there  must  have  been 
an  intention  on  the  part  of  the  person  in  possession  to  claim 
title,  or  he  must  have  claimed  it  as  against  others,  by  declarations 
or  acts,  that  a  failure  of  the  owner  to  prosecute  within  the  time 
limited,  raises  a  presumption  of  an  extinguishment  or  a  sur- 
render of  his  claim.2 

i  Tootle  v.   Clifton.   22   O.   S.   252,  253. 

2  Lane  v.  Kennedy.   13  0.  S.  46,  47;  Humphries   v.  Huffman,  33  O.  S.  395. 

Sec.  1693.     It  need  not  be  held  under  color  of  title. 

It  is  not  an  essential  of  the  title  acquired  by  adverse  possession, 
that  the  party  should  have  entered  under  color  of  title,  nor  that 
the  possession  be  held  under  color  of  title.  Where  there  is  posses- 
sion of  the  requisite  character,  the  question,  whether  there  is 
color  of  title  or  not,  is  wholly  immaterial.1 

It  is  visible  and  adverse  possession,  with  an  intent  to  possess, 
that  constitutes  its  adverse  character,  and  not  the  remote  motives 
or  purposes  of  the  occupant.2 

i  Lessee  of  Paine  v.  Skinner,  8  0.    167;   Yetzer   v.  Thoman,    17   O.   S.   130; 

McNeeley  v.  Langan,  22  O.  S.  37. 
2  French    v.   Pearce,   S   Conn.   439:    Humphries    v.   Huffman,  33  O.  S.  402. 

Sec.  1694.     Meaning  of  continuous  possession. 

In  order  that  it  will  constitute  continuous  possession,  you  are 
instructed  that  it  is  not  essential  that  it  shall  be  continuously 
held  and  possessed  by  one  person.  That  is,  the  possession  will 
descend  to  the  heir  of  the  possessor,  without  interrupting  the 
running  of  the  statute.  It  is  sufficient  that  the  possession  during 
such  period  was  in  the  party  claiming  or  those  under  whom  he 
claims;  and,  as  to  third  persons  against  whom  the  possession  was 
held  adversely,  it  is  immaterial,  if  successive  transfers  of  the 
possession  were  in  fact  made,  whether  such  transfers  were  by 
will,  by  deed,  or  by  agreement,  either  written  or  verbal.1 
i  McNeeley   V.  Langan,   22  0.   S.  32. 


1432  INSTRUCTIONS   TO    JURY. 

Sec.  1695.    Adverse  possession — Occupation  must  be  of  some 
well-defined  limits. 

Now  I  say  to  you  on  that  point  that  the  law  provides  that  when 
there  is  continuous,  uninterrupted,  open,  notorious,  and  adverse 
possession  of  land  by  a  person  for  twenty-one  years  or  more, 
such  person  has  a  right  to  the  possession  thereof;  it  operates  to 
convey  a  complete  title  as  much  as  any  written  conveyance,  and 
extinguishes  the  right  of  possession  to  any  other,  although  hold- 
ing the  paper  title.  By  these  terms,  continued,  uninterrupted, 
is  meant,  it  must  not  have  been  abandoned  or  lost  during  the 
twenty-one  years ;  by  adverse  is  meant  a  possession  in  opposition 
to  the  legal  title  and  real  owner,  and  the  occupation  must  be  by 
some  well-defined,  certain  limits,  indicated  by  a  substantial  and 
real  inclosure  or  something  of  a  like  notoijious  character.  It 
must  be  such  as  leaves  no  doubt  as  to  what  is  included  and  as  to 
what  is  intended  as  the  limits.  The  kind  of  possession  described  is 
what  defendant  must  show  by  a  preponderance  of  testimony ;  that 
he  or  those  from  whom  he  derives  title  had  had  for  twenty-one 
years  or  more ;  if  he  has  done  this,  he  is  entitled  to  a  verdict  at 
your  hands.1 
i  Nob1?,  J.,  in  France  V.  Dexheimer,  Sup.  Ct..  unreported.  Cuyahoga  Co. 

Sec.  1696.    Lines  between  owners. 

Although  the  line  between  these  two  lots  may  by  mutual 
mistake  be  laid  different  from  the  lot  line,  each  being  bounded 
by  the  lot-line  in  their  deeds,  if  they  or  those  from  whom  they 
claim  title  respectively  occupied  up  to  and  acquiesced  in  the 
wrong  line  for  a  period  of  twenty-one  years  or  more,  the  posses- 
sion of  each  being  open,  notorious,  continued,  and  exclusive,  that 
line  will  be  the  true  line  between  them. 

The  issue  to  be  determined  by  you  between  the  parties  is, 
in  the  first  place,  where  is  the  lot-line  between  these  parties, 
and  the  burden  of  proof  is  upon  the  plaintiff  to  prove  by 
a  preponderance  of  testimony  that  it  is  where  she  claims  it  is, 
and  she  must  establish  her  right  to  it  independently  of  any 
weakness  of  the  defendant's  title.    She  must  sustain  her  right  to 


EJECTMENT   AND   ADVERSE   POSSESSION.  1433 

the  strip  of  land  by  testimony  which  places  it  in  her  independent 
of  anyone  else. 

It  is  for  you  to  say,  gentlemen  of  the  jury,  under  all  the 
testimony  of  the  case,  who  is  entitled  to  this  strip  of  land  under 
the  rule  of  law  I  have  given  you,  what  is  the  true  lot-Hue.  If 
the  plaintiff  is  right  as  to  its  location,  what  is  the  fact  as  to 
another  line  being  established  and  acquiesced  in  by  the  parties 
and  those  from  whom  they  claim  title,  what  do  the  neighbors 
who  have  been  acquainted  with  it  twenty-one  years  tell  you  about 
the  original  location  of  the  fence  spoken  of  and  as  to  its  remain- 
ing in  the  same  position  substantially  ever  since?  What  light 
does  the  testimony  as  to  the  position  of  trees  and  surveyor's 
marks  and  monuments  throw  upon  if?  Do  they  indicate  it  has 
remained  as  it  was  or  that  it  has  been  changed  from  time  to 
time  and  the  line  altered  in  some  parts  ?  All  the  testimony  should 
have  its  proper  weight  with  you  in  reaching  a  conclusion.1 
i  Xoble.  J.,  in  France  v.  Dexheimer.  Sup.  ft..  No.   L896,  Cuyahoga  Co. 

Sec.  1697.     Abandonment — What  constitutes. 

"The  question  of  abandonment  is  one  of  fact  and  intention. 
Ceasing  to  cultivate  a  common  field  and  a  removal  elsewhere  do 
not  make  an  abandonment ;  but  to  constitute  an  abandonment 
by  the  party  it  must  be  shown  that  he  quit  the  property  with 
the  intention  of  no  further  claiming  same,  and  the  burden  of 
showing  the  abandonment  rests  upon  the  one  who  sues. ' ' 1 
i  Tayon  v.  Laden,  33  Mo.  205. 

Sec.  1698.     Adverse  possession — Must  extend  to  what. 

"Where  a  party  enters  upon  land  without  a  deed  or  other 
paper  title  containing  specific  descriptions  of  the  land  by  metes 
and  bounds,  or  without  color  of  title  to  the  premises,  claiming 
to  hold  them  adversely,  his  possession  only  extends  to  that  part 
of  the  tract  actually  improved  and  occupied  by  him,  and  his 
entry  in  such  case,  upon  a  part  of  the  premises,  does  not  give 
him  adverse  possession  to  uninclosed  and  unimproved  wood 
land.'" 
1  Humphries  v.  TTuffman,  33  0.  S.  395. 


1434  INSTRUCTIONS   TO    JURY. 

Sec.  1699.    Mistake  in  boundary  line — Nature  of  occupancy. 

Where  one  of  two  proprietors  respectively  of  adjoining  lines 
holds  actual,  notorious,  continuous,  and  exclusive  possession  up 
to  a  certain  line,  though  not  originally  the  true  one,  for  a  period 
of  twenty-one  years,  the  statute  of  limitation  applies  in  his  favor, 
and  against  the  adjoining  proprietors,  although  such  possession 
might  have  grown  out  of  the  mutual  mistake  of  the  parties 
respectively,  in  respect  to  the  locality  of  what  was  originally 
the  true  line  between  them.  Then  I  say  to  you  as  matter  of  law 
that  if  you  find  from  the  evidence  in  this  case  that  the  plaintiff 
and  those  under  whom  he  claims  to  have  had  actual,  continuous, 
and  exclusive  possession  of  the  land  described  in  the  petition,  or 
any  portion  thereof,  for  a  period  of  twenty-one  years  before  the 
commencement  of  this  action,  he  acquired  title  to  the  land  so 
occupied  as  against  the  defendant  and  every  other  adult  person. 

The  occupancy  necessary  to  acquire  title  by  possession  is  such 
occupancy  and  use  of  land  as  the  nature  of  the  particular  land 
would  require.  If  it  is  a  farm,  the  occupancy  would  have  to  be 
such  as  a  farmer  would  occupy,  either  by  plowing,  pasturing, 
mowing,  or  in  such  other  ways  as  a  farmer  would  usually  use 
land.  If  it  was  city  property,  the  occupancy  must  be  such  an 
occupancy  as  is  usual  for  city  property.  *  *  *  It  will  be 
important  for  you  to  determine  from  the  evidence  where  the 
true  line  between  the  lands  claimed  by  the  plaintiff  and  the  lands 
claimed  by  the  defendant  was.  This  is  a  question  of  fact  for  you 
to  determine  under  all  the  evidence  in  the  case.  It  will  be  impor- 
tant for  you  to  determine  whether  the  defendant  has  occupied 
any  of  the  land  described  in  the  petition  or  not,  and  if  he  has, 
to  what  extent  and  how  much  of  it  he  has  occupied.1 
i  Nye,  J.,  in  Edison  v.  Ranney. 

Sec.  1699a.     Declarations  as  to  ownership. 

Some  evidence  has  been  permitted  to  be  given  to  you  by  the 
defendant  as  to  what  R.  did  and  said  while  the  owner  was  in 
possession  of  the  lands  now  claimed  by  the  defendant,  by  way 
of  pointing  out  the  boundaries  of  said  land.    This  testimony  was 


EJECTMENT   AND   ADVERSE  POSSESSION.  1435 

permitted  to  be  given  you  for  the  purpose  of  showing  where  R. 
claimed  his  north  line  was,  while  he  was  such  owner  and  in 
possession  of  the  land  which  he  thus  claimed  to  own.  His  state- 
ments and  acts  should  be  given  such  weight  as  the  statements 
and  acts  of  owners  of  lands  generally,  and  no  more.  If  you  find 
from  other  evidence  that  the  line  which  the  said  R.  pointed  out 
and  stated  as  his  northerly  line  was  not  the  true  line,  then  you 
should  disregard  the  line  which  he  pointed  out  and  adopt  the 
one  which  you  find  to  be  the  true  line  between  the  lands  claimed 
by  the  plaintiff  and  the  lands  claimed  by  the  defendant.1 
i  Nye,  J.,  in  Edison  v.  Ranney. 


CHAPTER   XCVI. 
EMBEZZLEMENT. 


SEC. 

1700.  Venue  where  laid — Where  in- 

tention    to     commit     is 
formed. 

1701.  By  treasurer  of  hoard  of  edu- 

cation. 

1702.  Using  funds   intending  to  re- 

pay. 

1703.  By    public    officer    elected    or 

appointed. 

1.  The  statute. 

2.  A     fraudulent    appropria- 

tion. 

3.  Official  capacity. 


SEC. 

4.  Agent  of  public  officer. 

5.  Receipt   of  money   by   vir- 

tue of  office. 

6.  Circumstantial    evidence. 

7.  Reputation  of  defendant. 
1704.  By    agent    of    insurance    com- 
pany. 

1.  Right    of    agent    to    com- 

missions. 

2.  Intent. 

3.  Flight      and      change       of 

name. 

4.  Venue. 


Sec.  1700.     Venue  where  laid — Where  intention  to  commit  is 
formed. 

'"If  you  find  that  the  defendant  received  and  had  this  money 
in  his  possession  in  H.  County,  and  while  it  was  so  in  his  posses- 
sion in  H.  County,  he  formed  the  intention — the  purpose — to 
appropriate  the  money  to  his  own  use,  and  in  pursuance  of  that 
purpose,  so  formed  in  H.  County,  he  did  appropriate  the  same 
to  his  own  use,  either  by  expending  the  same  in  S.  County  or 
any  other  county  or  place,  or  if  he  did  not  expend  it,  but  in 
pursuance  of  such  intention  so  formed  in  H.  County,  he  kept  the 
money  in  his  own  pocket  with  the  intention  of  permanently 
depriving  his  employers  and  the  owner  thereof  of  said  money, 
and,  upon  demand,  with  that  intention,  refused  to  pay  it  over, 
then  in  either  case  the  crime  would  be  committed  in  H.  County. 
But  if  he  received  and  had  the  money  in  his  possession  in  H. 
County  and  carried  the  same  into  S.  or  any  other  county,  and 
then  for  the  first  time  formed  the  purpose  to  appropriate  the 
money  to  his  own  use.  and  in  pursuance  of  such  intention  he  did 

1436 


EMBEZZLEMENT.  1437 

appropriate  the  same  to  his  own  use  in  such  county,  then  the 
crime  would  not  have  heen  committed  in  II.  County.  If  the 
defendant  formed  the  purpose  in  H.  County  to  convert  the 
moneys  or  any  of  them  mentioned  in  the  indictment,  but  did 
not  in  fact  convert  them  or  any  of  them  in  II.  County,  he  can 
not  be  convicted  of  embezzlement  in  this  county. ' ' 1 
i  Campbell  r.  State,  35  0.  S.  70.     But  see  State  v.  Baxter.  89  <  >.  S.  — . 

Sec.  1701.     By  treasurer  of  board  of  education. 

Embezzlement  by  a  public  officer  is  a  fraudulent  appropriation 
to  his  own  use  of  the  moneys  or  goods  entrusted  to  his  care  by 
virtue  of  his  office.  Embezzlement  by  a  public  officer  as  applied 
to  this  case,  is  an  unlawful  and  fraudulent  appropriation  to  his 
own  use  of  the  money  entrusted  to  his  care  and  held  by  him  as 
such  officer.  It  then  becomes  important  for  you  to  determine 
from  the  evidence  whether  the  defendant  unlawfully  and  frau- 
dulently converted  to  his  own  use  the  sum  of  $ ,  or  any  part 

of  all  the  public  money  of  the  board  of  education  of Town- 
ship, which  came  into  his  hands  as  treasurer  of  said  board  of 
education.  In  determining  that  question  it  will  be  proper  for 
you  to  consider  the  manner  in  which  he  kept  the  money,  the 
place  where  he  kept  it,  what  he  did  with  it,  if  anything,  and  all 
the  other  facts  and  circumstances  given  you  in  evidence.1 
'  Nye,  J.,   in  State    v.  Wideman,  Medina  Co.  Com.   Pleas. 

Sec.  1702.     Using  funds  intending  to  repay. 

The  crime  charged  in  this  indictment  consists  in  the  embezzl- 
ing, and  in  converting  to  his  own  use,  the  public  money  described 
in  the  indictment.  If  you  find  from  the  evidence  that  the  defend- 
ant unlawfully  used  and  converted  to  his  own  use  the  money 
described  in  the  indictment,  or  any  portion  thereof,  intending  to 
replace  it,  the  mere  fact  that  he  intended  to  replace  it  would 
not  exonerate  him  from  such  unlawful  taking,  using,  and  con- 
verting to  his  own  use  any  of  the  public  money  which  came  into 
his  hands  as  treasurer  of  the  board  of  education  of Town- 
ship; and  if  he  did  convert  to  his  own   use  any  of  the  money 


1438  INSTRUCTIONS   TO   JURY. 

named  and  charged  in  the  indictment  in  this  case,  which  came 

into  his  hands  as  treasurer  of  the  board  of  education  of  

Township  he  would  be  guilty  of  embezzlement  of  as  much  of  the 
said  money  as  he  thus  converted  to  his  own  use.1 
i  Nye,  J.,  in  State  v.  Wideman,  Medina  Co.  Com.  Pleas. 

Sec.  1703.     By  public  officer  elected  or  appointed. 

_.   The  statute. 

2.  A  fraudulent  appropriation. 

3.  Official  capacity. 

4.  Agent  of  public  officer. 

5.  Receipt  of  money  by  virtue  of  office. 

6.  Circumstantial  evidence. 

7.  Evidence  of  other  similar  acts. 

8.  Reputation  of  defendant. 

1.  The  statute.  The  statute  of  the  state  under  which  the  indict- 
ment is  brought,  is  in  the  following  language : 

"Whoever  being  elected  or  appointed  to  an  office  of  public 
trust  or  profit,  or  an  agent,  clerk,  servant,  or  employe  of  such 
officer,  or  board  thereof,  embezzles  or  converts  to  his  own  use  or 
conceals  with  such  intent,  anything  of  value  that  shall  come  into 
his  possession  by  virtue  of  such  office  or  employment,  is  guilty  of 
embezzlement. 

2.  A  fraudulent  appropriation.  Embezzlement  by  a  public 
officer  appointed  or  elected  to  an  office,  of  public  trust  or  profit, 
or  by  the  agent  of  such  officer,  is  a  fraudulent  appropriation  to 
his  own  use  by  such  officer  or  agent  of  some  thing  of  value  that 
has  come  into  his  possession  by  virtue  of  his  office  or  employment. 

3.  Official  capacity.  Before  the  state  will  be  entitled  to  a 
verdict  of  guilty  at  your  hands,  it  must  first  be  proven  that  the 
defendant  was  either  an  officer  elected  or  appointed  to  an  office 
of  public  trust  or  profit,  or  was  the  agent,  clerk,  servant  or 
employe  of  such  officer. 

The  superintendent  of  banks  of  the  state  of  Ohio  is  an  officer 
appointed  by  the  governor  of  the  state  with  the  advice  and 
consent  of  the  senate  and  he  occupies  an  office  of  public  trust. 


EMBEZZLEMENT.  1439 

The  law  authorizes  the  state  superintendent  of  banks  with  the 
approval  of  the  governor,  to  employ  the  necessary  clerks  and 
examiners  to  assist  him  in  the  discharge  of  the  duties  imposed 
upon  him  by  law.  The  law  also  authorizes  the  state  superintend- 
ent of  banks  to  appoint  one  or  more  special  deputy  superintend- 
ents of  banks,  under  his  hand  and  official  seal,  as  agent  or 
agents,  to  assist  him  in  the  duty  of  liquidation  of  banks  and 
distribution  of  their  assets. 

The  indictment  in  this  case  charges  that  the  money  which  it  is 
charged  was  embezzled  by  the  defendant,  together  with  other 
moneys,  came  into  his  possession  by  virtue  of  his  office  of 
examiner  and  deputy  superintendent  of  banks,  and  it  is  also 
stated  that  this  is  an  office  of  public  trust  in  the  state  of  Ohio. 

4.  Agents  of  public  officer.  The  court  says  to  you  as  a  matter 
of  law,  that  while  the  office  of  state  superintendent  of  banks  is 
an  office  of  public  trust,  that  examiners  and  deputy  superintend- 
ents of  banks  are  not  officers  holding  or  occupying  an  office  of 
public  trust,  but  they  are  under  the  law  of  this  state,  the  agents 
of  such  officers.  It  is,  however,  not  material  that  the  indictment 
characterizes  the  position  or  employment  of  examiner  and  deputy 
superintendent  of  banks  as  an  office  of  public  trust.  If  the 
defendant  in  this  case  was  at  the  time  stated  in  the  indictment  an 
examiner  of  banks,  duly  appointed,  qualified  and  acting  as 
such,  and  was  also  a  deputy  superintendent  of  banks  dul3r 
appointed,  qualified  and  acting  as  such,  and  if  he  took  possession 
of  the  money  which  it  is  charged  he  embezzled  by  virtue  of  his 
position  or  appointment  and  qualifications  as  examiner  and 
deputy  superintendent  of  banks,  or  by  virtue  of  bis  position, 
appointment  and  qualification  in  either  capacity,  and  embezzled 
the  money  charged  in  the  indictment  to  have  been  embezzled 
after  it  came  into  his  possession  by  virtue  of  his  appointment 
and  employment,  he  is  guilty  of  the  crime  charged,  because  under 
the  statute  the  offense  may  be  committed  either  by  an  officer 
appointed  to  an  office  of  public  trust  or  by  his  agent,  and  it 
is  not  material  that  the  indictment  may  have  characterized  the 
position  of  examiner  and  deputy  superintendent  of  banks  as  an 
office  of  public  trust. 


1440  INSTRUCTIONS   TO   JURY. 

5.  Receipt  of  money  by  virtue  of  office.  The  indictment 
charges  as  a  fact  that  the  defendant  took  possession  of  the  money 
by  virtue  of  his  appointment  and  qualification  as  examiner  and 
deputy  superintendent  of  banks,  and  if  he  did  take  possession 
of  the  money  under  and  by  virtue  of  his  appointment  and 
qualification  to  these  positions  of  agent  or  employe  of  the  state 
superintendent  of  banks,  or  by  virtue  of  his  appointment  and 
qualification  as  either  examiner  or  deputy  superintendent,  he 
falls  within  the  terms  of  the  statute,  and  if  he  embezzled  the 
money  coming  into  his  possession  by  reason  of  his  position  as 
such  agent  of  the  state  superintendent  of  banks,  he  is  guilty  of 
the  crime  charged  in  the  indictment. 

If  you  find  that  the  defendant  was  at  the  time  in  question 
duly  appointed,  qualified  and  acting  as  examiner  of  banks  and 
deputy  superintendent  of  banks,  you  will  inquire  whether  the 
money  charged  to  have  been  embezzled,  came  into  his  possession 
by  virtue  of  his  holding  such  position  or  positions  under  the 
state  superintendent  of  banks. 

To  entitle  the  state  to  a  conviction,  it  must  be  proven  that 
the  money  charged  to  have  been  embezzled  came  into  his  posses- 
sion by  virtue  of  his  occupying  both  positions  at  the  time  in 
question. 

Before  the  defendant  can  be  found  guilty  of  the  crime  charged, 
it  must  not  only  be  proven  that  he  occupied  the  position  of 
examiner  of  banks  and  deputy  superintendent  of  banks,  one  or 
both,  and  that  the  money  charged  to  have  been  embezzled  came 
into  his  possession  by  virtue  of  his  occupying  this  position  or 
these  positions  of  agent  or  employe  of  the  state  superintendent 
of  banks,  but  it  must  further  be  proven  that  after  the  money 
came  into  his  possession,  he  embezzled  or  converted  it  to  his 
own  use.  That  is,  to  constitute  the  crime  charged  in  the  indict- 
ment, it  must  appear  that  he  appropriated  the  money  to  his  own 
use,  with  the  fraudulent  intent  and  purpose  on  his  part  to 
permanently  deprive  the  owner,  to-wit,  T.  C.  S.  &  T.  Co.,  of  the 
money  which  belonged  to  it.  It  must  also  be  proven  that  the 
money  belonged  to  the  said  T.  C.  &  &  T.  Co.    It  must  also  be 


EMBEZZLEMENT.  1441 

proven  that  the  defendant  thus  fraudulently  converted  the 
money  to  his  own  use  in  the  county  of  Franklin  and  state  of  Ohio. 

These,  gentlemen  of  the  jury,  are  the  necessary  tads  which 
must  he  proven  to  warrant  a  conviction  of  the  defendant,  and 
these  necessary  facts  or  elements  of  the  crime  must  each  and  all 
be  proven  beyond  a  reasonable  doubt  to  warrant  a  conviction  of 
the  defendant. 

6.  Circumstantial  evidence.  In  this  case,  gentlemen  of  the 
jury,  the  state  relies  upon  what  is  commonly  known  as  circum- 
stantial evidence,  to  establish  the  guilt  of  the  defendant  of  the 
crime  charged  against'  him. 

In  criminal  cases  the  evidence  may  be  either  direct  or  circum- 
stantial, or  both.  If  a  witness  sees  or  hears  or  in  some  way 
through  the  use  of  his  senses,  acquires  knowledge  of  the  exist- 
ence of  a  fact  to  be  proven  and  testifies  to  it,  that  is  direct 
evidence.  But  it  is  not  always  possible  in  criminal  cases  to  thus 
establish  the  guilt  of  persons  accused,  because  often  times  there 
are  no  witnesses  who  see  or  hear  the  ultimate  fact  to  be  proven. 
Nor  is  direct  evidence  necessary,  and  the  law  regards  circum- 
stantial evidence  as  equally  competent  with  direct  evidence,  the 
requirement  of  the  law  as  to  either  kind  of  evidence  being  that 
it  shall  be  sufficient  to  satisfy  the  mind  beyond  a  reasonable 
doubt  of  guilt,  to  warrant  a  finding  of  guilty. 

Circumstantial  evidence  is  the  proof  of  facts  which  stand  in 
such  relation  to  the  ultimate  fact  to  be  proved,  that  such  ultimate 
fact  may  be  inferred  from  the  fact  proven.  Each  ;ni!l  every 
fact  from  which  the  existence  of  the  ultimate  fact  to  he  proven, 
is  sought  to  be  inferred,  must  be  proven  beyond  a  reasonable 
doubt  and  the  conclusion  or  inference  of  guilt  should  How 
naturally  from  the  facts  proven.  Mere  opportunity  to  commit 
crime  is  not  alone  sufficient  to  prove  that  crime  was  committed. 
Tf  the  facts  proven  can  he  fairly  and  reasonably  harmonized 
with  the  innocence  of  the  defendant,  they  should  be  so  recon- 
ciled. But  if  after  a  careful  and  candid  consideration,  and 
weighing  of  all  the  facts  proven,  they  lead  naturally  to  the  con- 
clusion that  the  defendant  is  guilty,  and  exclude  every  reasonable 


1442  INSTRUCTIONS   TO   JURY. 

hypothesis  other  than  that  of  the  guilt  of  the  defendant,  and 
satisfy  your  minds  beyond  a  reasonable  doubt  of  his  guilt,  then 
you  should  find  the  defendant  to  be  guilty.     But  if  after  such 
careful  and  candid  consideration  and  weighing  of  all  the  evi- 
dence in  the  case  you  are  not  satisfied  of  the  guilt  of  the  defend- 
ant beyond  a  reasonable  doubt,  your  verdict  should  be  not  guilty. 
7.  Evidence  of  other  similar  acts.     The  state  has  offered  evi- 
dence in  this  case  for  the  purpose  of  establishing  the  fact  that  on 
other  occasions  the  defendant  was  guilty  of  the  offense  of  em- 
bezzling money  from  other  banks.    The  object  and  purpose  of  this 
evidence  is  not  to  prove  that  the  defendant  appropriated  the 
money  of  the  T.  C.  S.  &  T.  Co.,  but  only  for  the  purpose  of  estab- 
lishing the  intent  with  which  the  defendant  took  or  appropriated 
the  money  of  T.  C.  S.  &  T.  Co.,  if  you  find  he  did  so  take  or  ap- 
propriate the  money  of  T.  C.  S.  &  T.  Co.    You  are  not,  therefore, 
at  liberty  to  consider  this  evidence  as  tending  to  prove  that  the 
defendant  did  take  or  appropriate  the  money  of  T.  C.  S.  &  T.  Co. ; 
but  if  you  reach  the  conclusion  under  the  rules  stated  to  you  that 
he  did  so  take  or  appropriate  the  money  of  T.  C.  S.  &  T.  Co.  and 
you  further  find  from  the  evidence  beyond  a  reasonable  doubt 
that  he  embezzled  money  from  other  banks  on  other  occasions, 
then  you  have  a  right  to  consider  such  other  embezzlement  or 
embezzlements  on  the  question  of  the  intent  or  purpose  of  the 
defendant  in  taking  the  money  of  T.  C.  S.  &  T.  Co. 

8.  Reputation  of  defendant.  The  defendant  has  offered  evi- 
dence tending  to  establish  the  fact  that  prior  to  the  commission 
of  this  offense  he  bore  a  good  reputation  in  the  community  where 
he  lived.  It  is  your  duty  to  consider  this  evidence  along  with 
all  the  other  evidence  in  the  case  on  the  question  of  the  guilt  or 
innocence  of  the  defendant.  A  defendant  in  a  criminal  case 
has  a  right  to  give  evidence  concerning  his  former  good  reputa- 
tion and  character.  This  is  not  because  previous  good  reputa- 
tion and  character  are  any  defense  against  the  charge  of  crimin- 
ality. Its  object  and  purpose  is  that  it  may  be  placed  in  the 
scales  by  the  jury  when  weighing  the  evidence  to  determine  the 
question  of  the  guilt  or  innocence  of  the  defendant,  and  as 
tending   to   raise    a   presumption    that   one   possessing   such  a 


EMBEZZLEMENT.  1443 

previous  good  reputation  and  character  would  not  be  likely  to 
commit  the  crime  charged.  But  it  is  the  common  observation  of 
all  men  that  temptation  will  at  times  subvert  character  and 
overcome  integrity  and  fidelity  to  duty  and  lead  men  whose  past 
lives  have  given  no  indication  of  such  weakness,  into  the  com- 
mission of  crime.  But  it  is  also  the  common  observation  of  all 
men  that  men  of  good  reputation  and  character  are  not  so  likely 
to  commit  crime  as  those  whose  past  lives  have  given  plain 
indication  of  their  want  of  integrity  and  fidelity  to  duty.  It  is 
your  duty  therefore,  gentlemen  of  the  jury,  to  consider  this 
evidence  along  with  all  the  other  evidence  in  the  case  and  give 
to  it  such  weight  as  in  your  judgment  it  is  entitled  to  receive  in 
determining  the  question  of  the  guilt  or  innocence  of  the  defend- 
ant of  the  crime  charged  against  him.1 

i  State  of  Ohio  v.  C.  S.  Baxter,  Com.  Pleas   Court.   Franklin   County,  O., 
Bigger,  J. 

Sec.  1704.     By  agent  of  insurance  company. 

1.  Right  of  agent  to  commissions. 

2.  Intent. 

3.  Flight  and  change  of  name. 

4.  Venue. 

The  indictment  charges  that  the  defendant  was  the  agent  of 
the  insurance  company,  and  that  it  was  in  this  capacity  of  agent 
that  he  embezzled  the  money  in  question.  The  defendant  does 
not  deny  that  he  was  acting  in  the  capacity  of  agent  of  the 
insurance  company,  but  on  the  contrary  he  admits  that  he  was 
acting  as  agent  of  the  company,  and  also  admits  that  as  such 
agent  he  collected  this  money  that  he  is  charged  with  embezzling. 
But  be  says  that  he  was  entitled  to  retain  it  under  the  terms 
of  bis  contract  with  the  insurance  company.  Tt  becomes  your 
duty,  therefore,  gentlemen  of  the  jury,  to  determine  what  the 
contract  was  between  the  insurance  company  and  the  defendant, 
and  tin's  you  must  do  from  a  consideration  of  all  the  evidence 
in  the  case. 

1.  Right  of  agent  to  commissions.  The  defendant  bad  a  right' 
to  retain  his  commissions  which  the  contract  allowed  him  as 


1444  INSTRUCTIONS   TO   JURY. 

compensation  for  the  sale  of  stock  in  the  insurance  company 
from  the  money  received  from  the  sale  of  the  stock,  but  he 
would  not  have  a  right  to  retain  commissions  due  him  under 
his  agreement  to  act  as  agent  of  the  insurance  company  in  the 
sale  of  life  insurance  from  the  moneys  received  for  the  sale  of 
stock,  unless  you  find  that  under  the  terms  of  the  contract  he 
was  to  be  permitted  to  retain  his  commissions  earned  as  agent 
for  the  sale  of  life  insurance  from  moneys  received  from  the 
sale  of  the  stock.  But  if  the  contract  permitted  him  to  retain 
his  commissions  from  any  moneys  coming  into  his  hands,  without 
regard  to  whether  it  came  from  the  permiums  paid  for  life 
insurance  or  the  moneys  derived  from  the  sale  of  stock,  then 
he  would  have  a  right  to  retain  any  commissions  due  him  for 
acting  in  either  selling  stock  or  selling  insurance,  from  the 
moneys  derived  from  the  sale  of  stock. 

It  will  also  be  important  for  you  to  consider  what  amount 
was  due  to  him  as  commissions.  The  defendant  claims  that  the 
insurance  company  owed  him  for  commissions  on  orders  for 
stock,  which  the  evidence  shows  was  never  paid  for  by  the 
persons  who  ordered  it.  What  was  the  agreement  upon  that 
point?  Was  he  to  receive  his  commission  upon  obtaining  the 
order,  or  only  upon  payment  for  the  stock?  If  he  was  to  receive 
his  commissions  as  soon  as  he  had  obtained  the  order  for  the 
stock,  then  he  would  be  entitled  to  his  commissions  whether  the 
persons  ordering  it  paid  for  it  or  did  not  pay  for  it.  But  if 
he  was  to  receive  the  commission  only  in  case  the  persons  ordering 
it  paid  for  it,  then  he  could  not  claim  commissions  unless  the 
stock  was  paid  for. 

2.  Intent.  Criminal  intent  is  an  essential  element  of  the 
crime  charged,  and  before  the  defendant  can  be  found  guilty  it 
must  also  appear,  not  only  that  the  defendant  converted  this 
money  to  his  own  use,  or  some  part  of  it,  but  that  he  so  con- 
verted it  with  the  criminal  intent  of  depriving  the  owner,  the 
insurance  company,  of  it.  Furthermore,  as  a  felonious  or 
criminal  intent  is  an  essential  element  of  this  crime,  if  you  find 
that  the  defendant  in  good  faith  believed— that  under  his  con- 


EMBEZZLEMENT.  1445 

tract  he  was  entitled  to  retain  all  this  money  in  payment  of 
commissions  due  him,  he  will  not  be  guilty  of  the  crime  charged, 
although  he  may  have  been  mistaken  in  that  belief.  But  it'  he 
honestly  believed  he  was  entitled  to  retain  the  entire  amount 
here  charged  to  have  been  embezzled,  while  as  to  all  of  it  or  some 
part  of  it  he  was  not  in  fact  entitled  to  retain  it.  then  although 
the  company  could  recover  it  back  in  a  civil  suit  he  can  not  be 
held  criminally  liable,  and  for  the  reason  stated,  that  criminal 
intent  is  an  essential  element  of  the  offense  charged. 

Intention,  gentlemen  of  the  jury,  is  a  state  of  the  mind  and 
can  ordinarily  only  be  arrived  at  by  a  consideration  of  all  the 
evidence,  and  the  facts  and  circumstances,  with  the  transac- 
tions, including  any  statements  which  the  defendant  himself 
may  have  made  upon  the  subject. 

3.  Flight  and  change  of  name.  The  undisputed  evidence 
shows,  gentlemen  of  the  jury,  that  the  defendant  left  shortly 
after  he  received  the  last  of  this  money,  and  removed  to  the 
state  of  Indiana,  and  that  he  was  there  arrested,  and  that  he 
had  assumed  another  name.  These  are  circumstances  which 
you  have  a  right  to  consider  as  reflecting  upon  the  condition  of 
his  mind  at  the  time  when  he  received  this  money,  and  upon  the 
question  of  his  intention  and  belief  at  the  time  he  received  the 
money.  The  weight  to  be  given  to  it  is  a  question  which  must 
be  left  to  your  sound  judgment  and  discretion,  and  to  be  con- 
sidered in  connection  with  all  the  other  facts  and  circumstances 
disclosed  by  the  evidence. 

You  will  also  observe,  gentlemen  of  the  jury,  that  the  crime 
charged  in  this  indictment  can  not  be  made  against  persons 
under  the  age  of  eighteen  years,  or  against  an  apprentice.  The 
defendant  has  testified  that  he  is  thirty-two  or  thirty-three 
years — thirty-three  years  of  age.  As  only  minors  can  be  appren- 
tices under  the  law  of  this  state,  it  sufficiently  appears  therefore 
that  the  defendant  is  neither  an  apprentice  nor  under  the  age 
of  eighteen  years. 

Tf  yon  find  that  the  defendant  did  commit  embezzlement  of 
this  money,  or  some  part  of  it,  it  will  be  your  duty  to  inquire 


1446  INSTRUCTIONS   TO   JURY. 

whether  the  offense  was  committed  in  this  county  of  Franklin; 
because  the  defendant  can  not  be  found  guilty  unless  the  offense 
was  committed  in  this  county. 

4.  Venue.  If  you  find  the  fact  to  be  that  the  defendant  under 
the  terms  of  the  contract  was  required  to  make  report  to  the 
insurance  company  in  this  county,  and  to  account  to  it  at  its 
office  here  in  the  city  of  Columbus,  Franklin  county,  for  the 
moneys  collected  by  him,  and  if  you  further  find  that  in  the 
discharge  of  this  duty  he  corresponded  with  the  insurance 
company,  sending  letters  to  it  and  receiving  letters  from  it 
concerning  these  moneys  which  he  had  collected,  and  if  on 
receipt  of  communications  from  the  company  demanding  settle- 
ment he  sent  checks  in  settlement  or  partial  settlement  of  his 
account  to  the  insurance  company,  in  this  county,  which  checks 
were  returned  to  the  company  unpaid  for  want  of  funds  in 
the  bank  on  which  they  were  drawn,  then  I  say  to  you  that  you 
will  be  warranted  in  finding  that  the  offense  was  committed  in 
this  county.  But  if  you  find  the  fact  to  be  that  the  defendant 
under  the  terms  of  his  contract  was  required  to  account  to 
another  agent  of  the  insurance  company,  not  located  in  this 
county,  then  he  can  not  be  found  guilty. 

If  you  find  that  the  defendant  is  guilty  as  charged,  it  will 
be  your  duty  to  determine  how  much  of  the  money  belonging  to 
the  insurance  company  was  embezzled  by  the  defendant.  Before 
the  defendant  can  be  found  guilty  the  proof  must  satisfy  you 
beyond  a  reasonable  doubt  of  the  guilt  of  the  defendant,  and 
that  he  did  embezzle  either  all  of  this  money,  or  some  specified 
portion  of  it. 

It  is  not  essential  to  a  conviction  that  you  should  find  that 
he  embezzled  all  that  is  charged  in  the  indictment,  but  the  proof 
must  satisfy  you  that  as  to  some  portion  of  it  he  committed  the 
crime  of  embezzlement ;  and  you  will,  if  you  find  the  defendant 
to  be  guilty,  return  in  your  verdict  the  amount  which  you  find 
he  did  embezzle.1 

i  State  v.  Daugherty,  alias  Brown,  Court  of  Com.  Pleas,  Franklin  County, 
Ohio,  Bigger,  J.     See  ante,  sec.   1700;    Campbell  v.  State,  35  O.  S. 
70  as  to  elements  of  crime  and  venue;  also  State  v.  Baxter,  89  O.  S.  — . 


CHAPTER  XCVn. 
EMINENT    DOMAIN— APPROPRIATION    OF    PROPERTY. 


SEC. 

BI 

no. 

1705. 

Right     of     way     for     railway 
purposes — Constitutional 
provisions. 

n 

13. 

1706. 

Rules  for  assessing  compensa- 
tion. 

u 

14. 

1707. 

Opinions    of    witnesses    as    to 

value  of  property. 

li 

'I.-,. 

1708. 

Expert  testimony. 

1709. 

Assessment    of     compensation 
for  land — Rules  concern- 

i: 

'16. 

ing — Market  value. 

1717. 

1710. 

Right    of    public    to    improve 
and   use  public   highway 
— Construction    of     rail- 

road   in    highway    a   new 

r 

ris. 

use. 

1711. 

Appropriation     for    telegraph 
line. 

r 

ri9 

1712. 

Drainage  law — Object  of. 

What  use  will  justify  taking 
private  property  for 
drainage. 

Same — Benefits  to  private  in- 
dividuals for  cultivation 
not  sufficient. 

Drainage  proceedings — Bur- 
den as  to  question  of  use. 

Same  continued — Number  of 
petitioners. 

Same  continued — Determina- 
tion of  line  of  construc- 
tion of  ditch — Considera- 
tions to  be  observed. 

Same  continued — Compensa- 
tion for  lands  taken. 

Same  continued — View  of 
route  by  jury. 


Sec.  1705.     Right  of  way  for  railway  purposes — Constitutional 
provisions. 

The  P.,  P.  &  F.  Railway  Company,  the  plaintiff  in  this  pro- 
ceeding, filed  its  petition  herein  to  appropriate  to  its  uses  and 
ownership  the  premises  described  therein,  and  which  you  have 
already  inspected  and  examined.  It  is  the  right  of  the  plain- 
tiff to  take  this  land,  but  before  this  can  be  done  the  value 
tbereof  must  be  found  and  paid  in  money. 

The  constitution  of  our  state  provides  that  no  right  of  way 
shall  be  appropriated  to  the  use  of  any  corporation  until  full 
compensation  therefor  be  first  paid  in  money,  or  first  secured 
by  a  deposit  of  money  to  the  owner,  irrespective  of  any  benefit 
from  any  improvement  by  such  corporation,  which  compensation 

1447 


1448  INSTRUCTIONS   TO   JURY. 

shall  be  ascertained  by  a  jury  of  twelve  men  in  a  court  of 

record,  as  shall  be  prescribed  by  law.1 

i  Geo.   H.   Shepard,   Probate   Judge.     Affirmed   in   P.,  P.  &   F.   Ry.   Co.   v. 
Paine. 

Sec.  1706,     Rules  for  assessing  compensation. 

By  reason  of  the  provision  of  the  law,  made  under  this  clause 
of  the  constitution,  you  have  been  summoned,  empaneled  and 
sworn  to  render  full  compensation  to  this  defendant  for  the 
land  sought  to  be  taken  from  him  in  this  proceeding.  The  only 
duty  then  devolving  upon  you  in  this  case  is  to  ascertain  and 
declare  by  your  verdict,  how  much  money  will  make  full  com- 
pensation to  this  defendant  for  the  premises  described  in  the 
petition,  and  which  are  sought  to  be  taken  by  the  plaintiff.  We 
say  to  you  that  the  premises  sought  to  be  appropriated  extend 
to  the  center  of  the  river,  subject  to  the  rights  of  the  public 
to  use  the  river. 

"We  say  to  you  that  full  compensation,  in  this  case,  means 
the  fair  cash  market  value  of  this  land  as  it  is  at  the  present 
time  and  as  you  viewed  it,  without  any  regard  to  the  causes 
that  may  have  contributed  to  make  up  its  value. 

By  fair  cash  value  is  meant  as  much  as  the  owner  might 
fairly  expect  to  be  able  to  sell  it  for  to  others,  if  it  were  not- 
taken  by  the  plaintiff.  Such  a  price  as  it  would  bring  if  put  in 
the  market.  Not  what  it  would  bring  at  a  forced  sale,  or  under 
peculiar  circumstances,  but  such  sum  as  it  would  bring  in  the 
market,  that  is  to  persons  generally,  if  those  desiring  to  purchase 
were  found  who  were  willing  to  pay  its  just  and  true  value.  We 
say  to  you  that  the  necessity  of  the  plaintiff  to  have  these 
premises,  nor  the  unwillingness  of  the  defendant  to  part  with 
them  should  have  no  consideration  in  arriving  at  your  verdict. 
Neither  of  these  constitute  any  element  of  market  value.  It  is 
the  market  value  as  contradistinguished  from  any  special  value 
to  the  plaintiff,  or  any  other  corporation  or  to  any  individual. 
You  should  consider  the  location  of  the  premises  in  question,  the 
best  purposes  for  which  they  are  or  may  be  used,  their  surround- 


EMINENT  DOMAIN APPROPRIATION   OF  PROPERTY.  1-M9 

Lags,  their  present  condition,  with  reference  to  arriving  cat  fair 
market  value.  If  you  find  that  these  premises  have  any  special 
value,  for  any  purpose,  whether  it  is  for  the  purpose  for  which 
it  is  now  used  or  for  any  other  purpose,  which  affects  its  value 
in  the  market,  you  may  take  that  into  consideration.  You  are 
under  no  obligation  to  consider  the  bare  value  of  the  land,  with 
the  value  of  the  filling  and  docks  thereon  added.  The  value 
should  be  considered  with  reference  to  the  value  as  a  whole  as 
it  is  there  now,  for  the  best  purposes  to  which  it  may  be  applied. 
The  nature  and  condition  of  the  harbor  on  which  these  premises 
are  located,  the  business  done  on  the  premises  and  in  the  locality, 
nature  of  the  improvements  on  this  land,  its  general  availability, 
may  be  considered  by  you  in  your  deliberations. 

The  value  is  to  be  estimated,  having  regard  to  the  existing 
business  and  wants  of  the  community,  or  such  as  may  be 
reasonably  expected  in  the  near  future.1 

i  Geo.  H.  Shepard,  P.  J.  Approved  in  P.,  P.  &  F.  Ry.  Co.  v.  Paine,  by  cir- 
cuit and  supreme  courts. 

We  think  a  more  full  explanation  might  be  given  the  jury  as  to  what 
kind  of  compensation  is  contemplated  by  the  constitution,  and  so 
the  following  is  appended. 

Note  on  Allowance  of  Benefits. 

The  jury  must  consider  the  real  value  of  the  realty,  may  take  Into  account 
not  only  the  present  purpose  to  which  the  land  is  applied,  but  also 
any  other  beneficial  use  to  which,  in  the  course  of  events,  at  no 
remote  period,  it  may  be  applied.  30  O.  S.  111.  It  is  the  actual  as 
distinguished  from  the  speculative  loss  that  must  guide  the  jury. 
T*  e  jury  must  consider  the  real  value  of  the  land  taken,  the  dimin- 
ished value  of  the  remainder,  and  may  for  that  purpose  take  into 
account,  not  only  the  purposes  to  which  the  land  is  or  has  been 
applied,  but  any  other  beneficial  purpose  to  which  it  may  be  applied, 
which  would  affect  the  amount  of  compensation  or  damages.  30 
().  S.  108.  That  is  what  is  said  in  the  Longworth  case  (30  O.  S. 
108),  and  would  seem  to  permit  benefits  from  the  proposed  work 
to  be  taken  into  consideration  in  estimating  the  compensation  or 
damages  to  be  awarded.  In  0  W.  L.  B.  253,  and  in  29  W.  L.  B. 
200,  it  is  held  that  special  benefits  can  be  considered  so  far  as  to 
offset  damages  to  property  remaining;  that  special  benefits  may  be 
considered. 

This  matter  is  regulated  by  constitutional  provisions.  Art.  1,  sec.  19,  and 
Art.  13,  sec.  5,  the  first  requiring  compensation  to  be  made  without 
deduction  for  benefits,  when  the  property  is  appropriated  to  a  public 


1450  INSTRUCTIONS   TO   JURY. 

use,  and  the  other  providing  for  compensation  irrespective  of  benefits, 
where  it  is  taken  by  a  corporation  for  a  right  of  way,  which  two 
provisions  are  held  in  Giesy  v.  R.  R.  Co.,  4  0.  S.  309,  in  legal 
effect  to  be  identical. 

Whether,  therefore,  property  is  appropriated  directly  by  the  public  or 
through  the  intervention  of  a  corporation,  the  owner  is  entitled  to 
receive  its  fair  market  value  at  the  time  it  is  taken — as  much  as 
lie  might  be  able  to  sell  it  to  others  for,  if  it  was  not  taken;  and 
that  this  amount  (says  Judge  Ranney,  4  0.  S.  332)  is  not  to  be 
increased  from  the  necessity  of  the  public,  or  the  corporation  or  the 
public  to  have  it,  on  the  one  hand;  nor  diminished  by  any  necessity 
of  the  owner  to  dispose  of  it,  on  the  other.  It  is  to  be  valued 
precisely  as  it  would  be  appraised  on  sale  on  execution,  or  by  an 
executor  or  guardian;  and  without  regard  to  any  external  causes 
that  may  have  contributed  to  make  up  its  present  value.  The  jury 
are  not  required  to  consider  how  much,  nor  permitted  to  make  any 
use  of  the  fact  that  it  may  have  increased  in  value  by  the  proposal 
or  construction  of  the  work  for  which  it  is  taken.  To  allow  this  to 
be  done  would  not  only  be  unjust,  but  would  effect  a  partial  revival 
of  the  very  abuse  which  it  was  a  leading  purpose  of  these  constitu- 
tional provisions  to  correct.  Judge  Ranney  says  that:  "It  would 
he  unjust,  because  it  establishes  for  a  corporation  what  is  done  for 
no  one  else — a  sort  of  right  in  the  property  of  others,  to  the  re- 
flected benefits  of  its  improvements;  itself  submitting  to  no  reci- 
procity by  affording  to  others  a  compensation  for  the  effect  of  their 
improvements  upon  the  property  of  the  corporation.  And  it  is 
doubly  unjust  where,  as  must  very  often  happen,  the  increase  in 
value  accrued  to  the  benefit  of  the  former  owner,  and  has  been  bought 
and  paid  for  by  the  present  holder,  from  whom  the  property  is  taken 
at  a  diminished  price." 

The  language  of  the  constitution  is:  "Until  full  compensation — irrespective 
of  any  benefit  from  any  improvement  proposed  by  such  corporation." 

It  seems  perfectly  plain  that  this  intended  that  the  benefits  which  the 
remainder  of  the  property  might  derive  from  the  advantages  of  the 
railroad,  should  not  be  taken  into  account  as  against  the  value  of 
the  land  taken.  But  as  said  in  R.  R.  Co.  v.  Collett,  6  0.  S.  186, 
there  are  two  kinds  of  benefits  accruing  from  the  construction  of  a 
railroad  to  an  owner  of  land  through  which  it  passes.  First:  Gen- 
eral benefits,  or  such  as  accrue  to  the  community,  or  the  vicinity  at 
large,  such  as  increased  facilities  for  transportation  and  travel, 
and  the  building  up  of  towns  and  consequent  enhancement  of  the 
value  of  lands  and  town  lots.  Second:  Special  benefits,  or  such  as 
accrue  directly  and  solely  to  the  owner  of  the  lands  from  which  the 
right  of  way  is  taken;  as  when  the  excavation  of  the  railroad  track 
has  the  effect  to  drain  the  morass,  and  thus  to  transform  what  was 
a  worthless  swamp  into  valuable,  arable  land,  or  to  open  up  and 
improve  a  watercourse. 


EMINENT   DOMAIN — APPROPRIATION   OF  PROPERTY.  1451 

It  was  the  express  design  of  the  constitution  to  exclude  general  benefits 
from  consideration.  But  it  is  perfectly  reasonable  that  after  full 
compensation   for  the  land  actually  appropriated   for  the   right  of 

way,  in  view  of  all  its  uses  and  relations,  without  deducting  for 
benefits  of  any  kind,  the  jury  may  in  their  estimate  and  assessment 
consider  incidental  damages  to  other  lands  of  the  owner  from  the 
construction  of  the  road,  and  make  allowance  for  incidental  benefits. 
This  the  court  in  the  6  0.  S.  186,  refrained  from  deciding.  The 
rule  then  seems  to  be:  General  benefits  accruing  from  the  work  can 
not  be  considered  to  deduct  the  compensation.  Special  benefits  may, 
after  full  compensation  allowed,  be  taken  into  consideration  to  offset 
other  damages  to  other  lands. 

Sec.  1707.     Opinions  of  witnesses  as  to  value  of  property. 

Having  called  your  attention  to  what  is  meant  by  "full  com- 
pensation," which  the  law  and  constitution  guarantees  to  this 
defendant,  we  come  now  to  consider  the  means  for  arriving  at 
the  rest.  It  is  a  general  rule  in  law  that  witnesses  can  only 
state  facts  within  their  knowledge.  In  this  case,  however,  wit- 
nesses have  been  called  to  give  their  opinions  concerning  the 
value  of  the  premises  in  question,  and  from  these  opinions  the 
jury  form  its  opinion.  You  are  not  bound,  however,  to  take 
these  opinions  for  more  than  you  consider  them  worth.  Opin- 
ions, like  most  everything  else,  vary  in  value,  and  like  other 
things  are  dependent  upon  something  else  for  their  worth.  It 
is  the  value  of  the  opinions  of  the  witnesses  that  have  testified 
in  this  case  that  you  should  consider  in  arriving  at  the  market 
value  of  the  premises.  We  say  to  you  that  one  of  the  chief 
elements  in  the  value  of  an  opinion  is  the  knowledge  which  the 
witness  has  of  the  subject  matter  of  which  he  testifies.  Not  the 
knowledge  which  he  professes,  but  that  which  he  actually  pos- 
sesses. If  the  witness  has  no  more  knowledge  of  the  subject 
than  men  generally  possess,  or  the  juror  possesses,  then  his 
opinion  is  no  better.  You  are,  therefore,  in  the  case  now  before 
you,  to  look  well  to  the  foundation  of  the  opinion,  each  and 
every  witness  that  has  been  called.  What  means  has  he  of 
knowing  about,  the  value  of  this  land?  What  opportunities 
have  been  offered  him? 


1452  INSTRUCTIONS   TO   JURY. 

Another  element  in  the  value  of  an  opinion  is  its  freedom 
from  interest,  bias,  or  feeling.  These  are  so  apt  to  mould, 
fashion,  and  foster  an  opinion,  on  that,  great  caution  should 
be  taken  in  receiving  an  opinion  where  these  things  exist  and 
abound. 

We  have  said  thus  much  that  you  may  the  more  intelligently 
understand  the  application  of  the  law  to  the  evidence  in  this 
case  and  which  must  be  considered  by  you.1 

i  Geo.  H.  Shepard,  P.  J.,  in  P.  P.  &  F.  Ry.  Co.  v.  Paine,  approved  by  Cir- 
cuit and  Supreme  Courts.     No.   3024  S.  C. 

Sec.  1708.     Expert  testimony. 

The  parties  in  this  case  have  called  as  witnesses  what  are 
known  in  law  as  non-professional  experts.  This  is  a  class  of 
persons  who,  by  their  especial  means  of  observation  or  peculiar 
advantages,  have  better  or  more  extended  means  of  knowing 
of  the  value  of  the  premises  in  controversy,  and  it  is  your 
province  to  give  each  and  every  witness  produced  just  such 
weight  and  credit  as  you  think  he  is  entitled.  You  should 
carefully  inquire  into  his  means  of  knowledge,  what  oppor- 
tunity he  has  for  observing  and  ascertaining  the  value  of  this 
land,  what  feeling  or  prejudice  he  has  in  the  case,  what  interest 
in  the  proceedings. 

Sec.  1709.    Assessment  of  compensation  for  land — Rules  con- 
cerning— Market  value. 

You  are  sworn  to  justly  and  impartially  assess,  according 
to  your  best  judgment,  the  amount  of  compensation  due  to 
the  owner  of  this  land  in  this  case.  This  is  the  question,  and 
the  only  one  for  you  to  determine.  But  in  the  determination 
of  this  question  there  are  two  ways  you  are  to  consider  it. 
First,  you  should  find  what  the  land  actually  taken  and  used 
by  the  railroad  company  is  worth;  that  is,  this  strip  of  land 
fifty  feet  in  width  and  extending  across  the  whole  tract,  con- 
taining, as  the  petition  avers,  three  and  30-100  acres  of  land. 


EMINENT   DOMAIN — APPROPRIATION  OF  PROPERTY.  1453 

What  is  this  land  worth?  Not  as  a  strip  severed  and  cut  out 
of  the  whole  tract,  but  what  is  it  worth  as  a  part  of  the  whole 
tract,  taken  in  connection  with  it,  and  without  the  railroad 
upon  it?  Having  found  what  the  land  taken,  that  is,  the 
three  and  30-100  acres,  is  worth,  then  you  are  to  find  how  much 
less  valuable  the  remaining  part  of  said  land  will  lie  rendered 
by  reason  of  the  taking  of  the  strip  of  land  out  of  it  and  using 
the  same  for  building  and  operating  thereon  a  railroad,  as  it 
is  now  being  occupied.  That  is,  you  are  to  say  what  the  damage 
is,  if  any.  which  this  land-owner  sustains  by  reason  of  the 
construction  of  this  railroad  across  his  land.  You  were  per- 
mitted to  go  and  see  for  yourselves  the  property  of  the  plaintiff 
and  the  location  of  the  railroad  across  the  same.  The  road 
having  been  already  constructed,  you  are  the  better  enabled  to 
see  just  how  it  affects  the  remaining  part  of  plaintiff's  land. 

You  are  to  find  the  actual  or  market  value  of  the  land  taken ; 
the  actual,  as  distinguished  from  any  speculative  loss  the  land- 
owner may  sustain.  This  is  the  rule  that  must  guide  you. 
But  I  say  to  you  that  you  have  a  right  to  consider  and  take 
into  account  not  only  the  present  use  of  the  land  and  its  value 
for  that  purpose,  but  also  any  other  more  beneficial  purpose 
to  which,  in  the  course  of  events  at  no  remote  period,  it  may 
be  applied. 

A  map  or  plat  has  been  offered  in  evidence  for  the  purpose 
of  showing  the  location  of  the  property  and  the  course  of  the 
railroad  through  the  same,  and  its  availability  for  subdivision 
into  lots.  For  this  purpose  only  the  map  is  admitted  and  can 
be  considered  as  evidence  by  you,  and  in  this  way  you  may 
consider  it. 

If  you  find  from  the  evidence  that  this  land,  or  a  part  of 
it,  is  available  for  such  subdivision  into  lots,  you  should  take 
this  fad  into  account.  But  it  is  the  value  for  so  dividing, 
and  not  the  value  of  the  lots  when  the  division  lias  in  fact 
been  made. 

The  plaintiff  is  entitled  to  a  compensatory  and  not  a  specu- 
lative remuneration  for  the  land  taken,  and  for  the  diminution, 


1454  INSTRUCTIONS  TO  JURY. 

if  any,  in  value  to  the  remainder  of  the  land  occasioned  by  the 
appropriation  of  the  land  taken  for  the  use  of  a  railroad;  and 
the  difference  between  the  actual  value  of  the  plaintiff's  prop- 
erty without  the  railroad,  and  the  value  of  the  same  property 
with  the  railroad  as  located,  is  full  compensation,  and  all  to 
which  the  plaintiff  is  entitled.  In  arriving  at  the  amount  of 
compensation  to  be  awarded  to  the  plaintiff,  you  must  not  take 
into  consideration  facts  of  a  contingent  and  prospective  char- 
acter, such  as  the  probable  amount  that  may  be  derived  from 
sales  of  the  property  when  hereafter  divided  into  building  lots 
and  sold  as  such  lots;  but  you  must  ascertain  the  value  of  the 
land  taken,  and  diminution  in  value  of  the  remainder,  or  injury 
thereto,  occasioned  by  the  taking  in  view  of  its  present  character, 
situation  and  surroundings. 

It  is  the  value  at  the  time  of  the  commencement  of  these  pro- 
ceedings, that  is,  the  present  term. 

The  duty  devolved  on  you  in  this  case  is  to  determine  and 
assess  the  fair  market  value  of  the  land  which  the  proof  shows 
you  has  been  taken,  as  well  as  the  diminution  in  value  at  their 
fair  market  price  of  the  residue  of  the  lands  not  taken,  and  you 
can  not  make  any  use  of  the  fact  that  the  land  is  increased  in 
value  by  the  construction  of  the  proposed  railroad  upon  it,  nor 
can  you  make  any  use  of  the  fact,  if  it  be  a  fact,  that  after  the 
taking  and  the  construction  of  the  railroad  upon  it,  manufac- 
turing works  are  located  upon  a.  part  of  the  tract  of  which  at 
the  time  of  the  taking  there  was  no  existence,  nor  probability 
of  such  location. 

If  you  find  from  the  evidence  that  a  portion  of  said  tract, 
described  in  the  petition  as  one  hundred  and  sixty-three  acres, 
has  been  laid  out  into  lots,  separated  from  the  balance  of  the 
tract  and  sold,  such  lots  or  tracts  so  cut  off  and  sold  should  not 
be  considered  by  you  as  a  part  of  the  property  of  the  plaintiff, 
or  as  in  any  way  affecting  his  rights  in  this  case.1 

i  From  P.  &  W.  R.  It.  Co.  v.  Perkins,  Supreme  Court,  unreported.     No. 
1710. 


EMINENT  DOMAIN — APPROPRIATION   OF   PROPERTY.  1455 

Sec.  1710.  Right  of  public  to  improve  and  use  a  public  high- 
way — Construction  of  railroad  in  highway  a 
new  use. 

"As  between  the  public  and  the  owner  of  land  upon  which 
a  common  highway  is  established  it  is  settled  that  the  public 
has  a  right  to  improve  and  use  the  public  highway  in  the  man- 
ner and  for  the  purposes  contemplated  at  the  time  it  was  estab- 
lished. The  right  to  improve  includes  the  power  to  grade, 
bridge,  gravel,  or  plank  the  read  in  such  a  manner  as  to  make 
it  most  convenient  and  safe  for  use  by  the  public  for  the  pur- 
poses of  travel  and  transportation  in  the  customary  manner, 
which  is  well  understood  to  be  by  the  locomotion  of  man  and 
beast,  and  by  vehicles  drawn  by  animals,  without  fixed  tracks 
or  rails  to  which  such  vehicles  are  confined  when  in  motion. 
These  constitute  the  easement  which  the  public  acquires  by 
appropriating  land  for  the  right  of  way  for  a  highway,  and 
these,  in  legal  contemplation,  are  what  the  owner  is  to  receive 
compensation  for  when  his  land  is  appropriated  for  this  pur- 
pose. The  fee  of  the  land  remains  in  the  owner;  he  is  taxed 
upon  it ;  and  when  the  use  or  easement  in  the  public  ceases  it 
reverts  to  him  free  from  incumbrance. 

"In  the  exercise  of  the  right  of  eminent  domain,  the  state, 
through  the  general  assembly,  may  delegate  to  a  railroad  cor- 
poration the  power  to  appropriate  a  right  of  way  for  its  road 
along  and  upon  a  public  highway.  *  *  *  In  such  case,  the 
rights  of  the  public  and  the  rights  of  the  owner  are  entirely 
distinct;  and  the  consent,  expressed  or  implied,  of  one  to  the 
appropriation  would  not  bind  or  affect  the  rights  of  the  other. 
*  *  *  The  railroad  company,  by  occupying  the  highway, 
constructing  its  track,  and  operating  its  trains  thereon  by  steam 
motive  power,  completely  diverted  the  highway  from  the  uses 
and  purposes  for  which  it  was  established.  This  new  use,  to 
which  the  highway  has  been  diverted,  imposes  burdens  on  the 
land  that  are  entirely  different  from,  and  in  addition  to,  those 
that  were  imposed  by  the  highway.  The  right  to  so  divert  the 
use,  and  impose  additional  burdens  on  the  land,  could  only  be 
acquired  by  the  corporation  by  agreement  with  the  owner,  or 


1456  INSTRUCTIONS   TO   JURY. 

by  appropriating  and  making  compensation  therefor  in  the  mode 

prescribed  by  law. ' ' * 

i  Daily  v.  State,  51  O.  S.  348. 

Sec.  1711.    Appropriation  for  telegraph  line. 

"Upon  the  question  as  to  the  rights  of  the  telegraph  com- 
pany, the  court  says  to  you  that  at  the  time  of  the  erection  of 
the  poles  and  the  construction  of  the  telegraph  line,  whether 
in  1882  or  in  1884,  the  land  upon  which  this  highway  was  situ- 
ated was  the  property  of  Mr.  T.,  subject  to  the  right  of  way 
for  public  use  for  a  highway;  that  is,  for  travel  and  keeping 
it  in  repair  as  a  highway. 

"As  between  Mr.  T.  and  other  individuals  or  corporations, 
it  could  be  used  for  no  other  purpose  without  entitling  him  to 
compensation  for  such  use,  and  the  entry  of  this  telegraph  com- 
pany upon  his  land  without  compensation  to  him  or  without 
an  agreement  between  him  and  such  corporation,  if  you  find 
this  corporation  did  so  enter,  was  not  a  rightful  entry  or  occu- 
pancy; and  as  to  the  trees  growing  upon  his  land  at  the  time 
such  company  constructed  its  lines,  as  between  him  and  such 
corporation,  he  had  the  right  to  have  the  trees  remain  and  grow 
there  without  injury,  whether  such  injury  was  necessary  or  not 
to  the  use  of  the  lines  of  such  telegraph  company.  The  United 
States  could  not,  nor  has  it  attempted  to  take  away  by  any 
statute  that  right.  Mr.  T.'s  right  to  maintain  the  trees  in  the 
ordinary  way  was  an  absolute  right,  and  this  right  could  be 
taken  from  him  in  no  way  until  such  time  as  they  acquired  the 
right  to  maintain  such  lines  by  prescription,  which  means  actual 
occupancy  for  twenty-one  years  or  more,  or  by  appropriation 
or  agreement ;  and  for  this  company,  by  its  agents,  without  first 
acquiring  the  right,  to  enter  upon  this  land  and  to  cut  the  trees 
growing  thereon  would  be  proceeding  without  lawful  authority. '  '* 
i  Approved  in  Daily  v.  State,  51  O.  S.  348. 

Sec.  1712.    Drainage  law — Object  of. 

As  to  the  first  proposition  the  court  will  instruct  you  that 
the  object  of  the  law  is  to  provide  means  for  drainage  whenever 


EMINENT  DOMAIN APPROPRIATION   OF  PROPERTY.  1457 

the  public  health,  convenience  or  welfare  require  it.  It  is  not 
essential  that  the  public  at  large  shall  be  benefited,  but  only 
that  part  of  the  public  affected  by  want  of  proper  drainage,  or 
by  the  improvement  to  be  made.  The  injury  from  want  of 
drainage  and  the  benefit  to  be  derived  from  the  ditch  are  neces- 
sarily local  in  their  nature.  Public  welfare,  health  and  con- 
venience in  this  connection  are  terms  used  in  contradistinction 
from  mere  private  benefit.  A  nuisance  is  said  to  be  public  when 
it  affects  the  surrounding  community  generally,  and  impairs  the 
rights  of  neighboring  residents  as  members  of  the  public,  and 
private  when  it  especially  injures  individuals. 

The  mere  fact  that  the  proposed  ditch  would  enable  the  parties 
to  raise  more  corn  will  not  authorize  a  finding  in  favor  of  the 
establishment  of  the  ditch.1 
i  Marsh  r.  Phelan,  Clark  Co.     Approved  by  C.  C.  and  S.  C. 

Sec.  1713.     What  use  will  justify  taking  private  property  for 
drainage. 

The  use  that  will  justify  the  taking  of  private  property  by 
the  power  of  eminent  domain  is  the  use  for  the  government, 
the  general  public,  or  some  portion  of  it,  and  not  the  use  by 
or  for  particular  individuals,  or  for  the  benefit  of  certain  estates. 
The  use  may  be  limited  to  the  inhabitants  of  a  small  locality; 
but  the  benefit  must  be  in  common  and  not  to  a  very  few  persons 
and  estates.  The  property  of  each  individual  conduces  in  a 
certain  sense  to  the  public  welfare,  but  this  fact  is  not  sufficient 
reason  alone  for  taking  other  property  to  increase  the  prosperity 
of  individual  men. 

The  drainage  of  marshes  and  ponds  may  be  for  the  promotion 
of  the  public  health,  and  so  become  a  public  object;  but  the 
drainage  of  farms  to  render  them  more  productive,  alone,  i* 
not  such  an  object. 

The  fact  that  there  are  other  public  ditches  near  does  not 
affect  the  right  to  locate  the  proposed  ditch,  if  the  public  health, 
convenience  or  welfare  demand  the  proposed  ditch.     Neither  is 


1458  INSTRUCTIONS   TO   JURY. 

it  the  length  of  a  proposed  ditch,  but  the  extent  of  the  drainage 
to  be  affected  by  it  that  determines  the  power  to  establish  it. 

The  location  of  one  ditch  by  the  trustees  of  the  county  com- 
missioners to  drain  certain  territory  will  not  prevent  the  estab- 
lishment of  other  ditches  to  drain  the  same  territory,  provided 
that  the  public  health,  convenience  or  welfare  demands  such 
ditch. 

The  jury  shall  take  into  consideration  the  testimony  tending 
to  show  that  the  proposed  ditch  is  located  upon  the  line  of  a 
ditch  located,  established  and  kept  open  by  the  township  trustees 
of township, county,  0.,  in  determining  the  ques- 
tion as  to  whether  the  ditch  petitioned  for  will  be  conducive  to 
the  public  health,  welfare  and  convenience;  and  also,  whether 
the  route  thereof  is  practicable.1 
i  Marsh  v.  Phelan.     Approved  by  circuit  and  supreme  courts. 

Sec.  1714.     Same — Benefits  to  private  individuals  for  cultiva- 
tion not  sufficient. 

The  mere  fact  that  the  ditch  might  enable  A.  P.  to  raise  larger 
or  better  crops,  or  even  to  cultivate  a  part  of  his  land  which 
he  could  not  before  cultivate,  is  a  fact  going  to  show  that  he 
would  be  privately  benefited,  but  this  is  not  sufficient  to  author- 
ize you  to  return  a  verdict  finding  that  said  ditch  will  be  con- 
ducive to  the  public  health,  welfare  and  convenience.  The  evi- 
dence derived  from  your  view  of  the  premises  and  the  testimony 
of  witnesses  must  show  you  that  the  establishment  of  said 
ditch  will  be  conducive  to  the  public  health,  convenience  and 
welfare  without  regard  to  private  benefits  before  you  can  return 
a  verdict  in  favor  of  the  establishment  of  said  ditch.  The 
advantage,  convenience  or  welfare  of  one  or  more  individuals 
is  not  sufficient  reason  for  the  establishment  of  a  public  ditch 
for  which  private  property  can  be  taken  and  assessments  made 
to  pay  therefor. 

Even  if  it  appears  that  the  proposed  ditch  will  only  advan- 
tageously drain  the  lands  of  A.  P.,  or  other  individuals,  so  that 


EMINENT  DOMAIN — APPROPRIATION  OP  PROPERTY.  1459 

their  lands  will  be  better  adapted  to  agriculture,  or  rendered 
more  valuable  in  any  way,  this  will  not  be  sufficient  to  authorize 
you  to  find  in  favor  of  said  ditch.  To  do  so,  it  must  affirma- 
tively appear  to  you  from  your  view  of  the  route  and  the  testi- 
mony of  witnesses,  that  the  community  generally  about  said 
proposed  ditch  will  be  benefited  in  health,  convenience  or  welfare 
by  the  establishment  of  the  same.  If  said  ditch  does  not  affect 
the  community  generally,  but  only  benefits  the  property  of 
certain  individuals,  it  will  be  your  duty  to  find  that  said  ditch 
will  not  be  conducive  to  the  public  health,  convenience  or  wel- 
fare.1 
i  Marsh  v.  Phelan.     Approved  by  C.  C.  and  S.  C. 

Sec.  1715.    Drainage  proceedings — Burden  as  to  questions  of 
use. 

The  burden  of  proof  on  the  questions  as  to  whether  the  pro- 
posed ditch  will  be  conducive  to  the  public  health,  convenience 
or  welfare,  is  upon  the  party  seeking  the  establishment  thereof, 
and  if  you  do  not  find  by  a  preponderance  of  the  evidence, 
from  your  view  of  the  premises  and  the  testimony  of  witnesses 
that  the  proposed  ditch  will  conduce  to  the  health,  convenience 
or  welfare  of  the  public  generally  in  the  vicinity  of  the  same,  it 
will  be  your  duty  to  find  that  said  ditch  will  not  be  conducive 
to  the  public  health,  convenience  or  welfare.1 
i  Marsh  v.  Phelan.     Approved  by  C.  C.  and  S.  C. 

Sec.  1716.     Same  continued — Number  of  petitioners. 

One  petitioner  is  sufficient,  and  in  order  for  the  ditch  to  be 
for  the  public  health,  convenience  or  welfare,  the  whole  land 
from  which  the  benefit  is  to  be  derived  may  be  owned  by  one 
person  only.  So,  if  you  find,  under  the  rules  stated,  that  the 
proposed  ditch  would  better  drain  the  land  of  A.  P.,  and  thereby 
be  conducive  to  the  public  health,  convenience  or  welfare,  it 
will  be  your  duty  to  find  in  favor  of  the  ditch.1 
i  Marsh  v.  Phelan.    Approved  by  C.  C.  and  S.  C. 


1460  INSTRUCTIONS   TO    JURY. 

Sec.  1717.  Same  continued — Determination  of  line  of  con- 
struction of  ditch — Considerations  to  be  ob- 
served. 

You  are  to  determine  whether  the  route  of  the  proposed  ditch 
is  a  practical  one — that  is,  you  are  to  say  whether  or  not  if  the 
ditch  be  constructed  upon  the  line  and  route  as  determined 
upon  by  the  commissioners  it  will  reasonably  meet  the  ends  and 
objects  for  which  the  construction  has  been  sought. 

In  determining  this  matter,  you  should  consider  the  route  as 
located,  in  relation  to  the  surrounding  lands,  the  outlet  provided, 
and  generally  whether  it  will  serve  the  purpose  for  which  it 
was  intended,  and  that  it  will  drain,  or  aid  in  draining,  the  land 
near  or  through  which  it  extends. 

In  the  location  of  such  a  ditch  it  was  not  necessary  that  the 
natural  flow  of  the  water  be  followed,  but  only  that  the  route 
determined  upon  be  a  practicable  one. 

The  burden  of  proof  upon  the  question  as  to  whether  the 
route  of  said  ditch  is  practical  is  upon  the  party  seeking  the 
establishment  thereof,  and  if  you  do  not  find  by  a  prepon- 
derance of  the  evidence  from  your  view  of  the  premises  and 
testimony  of  witnesses,  that  the  route  of  the  ditch  is  practicable 
for  the  purposes  sought  to  be  attained  thereby,  it  will  be  your 
duty  to  find  that  the  route  of  said  proposed  ditch  is  not  prac- 
tical.1 
i  Marsh  v.  Phelan.     Approved  by  C.  C.  and  S.  C. 

Sec.  1718.     Same  continued — Compensation  for  lands  taken. 

You  are  to  determine  how  much  compensation  is  due  to  S.  M. 
for  the  lands  appropriated  for  the  construction  of  this  ditch 
upon  the  proposed  route.  The  value  of  the  lands  actually  used 
for  the  ditch  must  be  allowed  her.  In  considering  this  question, 
the  fact  that  she  might  receive  benefits  from  the  proposed  ditch 
can  not  be  taken  into  consideration  in  allowing  or  fixing  her 
compensation. 

You  must  allow  her  just  such  sum  as  will  compensate  her. for 
the  loss  of  land  used  in  the  construction  of  the  ditch. 


EMINENT  DOMAIN — APPROPRIATION   OP   PROPERTY'.  1461 

The  fair  market  value  in  cash  at  the  time  it  is  taken  must 
be  allowed  her. 

There  is  a  difference  between  the  terms  "compensation"  and 
''damages."  Compensation  means  an  appropriation  for  land 
actually  used  in  making  and  constructing  the  ditch.  Damages 
is  an  allowance  made  for  any  injury  that  may  result  to  the 
lands  affected  by  reason  of  the  ditch  to  be  constructed. 

You  are  to  determine  what  damages,  if  any,  are  due  to  S.  M. 
for  property  affected  by  this  proposed  ditch. 

In  determining  the  damages  you  will  consider  how  much  less 
valuable,  if  any,  the  remaining  lands  will  be  by  reason  of  the 
construction  of  the  ditch. 

"Where  land  is  appropriated  for  a  public  use,  a  compensation, 
not  a  speculative  remuneration,  is  guaranteed  by  the  law  for 
the  land  taken  and  for  damages  occasioned  thereby  to  the 
remainder  of  the  premises.  The  differences  in  value  of  the 
owner's  property  with  the  appropriation  and  that  without  it 
is  the  rule  of  compensation.  This  difference  must  be  ascer- 
tained with  reference  to  the  value  of  the  property  in  view  of 
the  present  character,  situation,  and  surroundings. 

Under  the  head  of  damages  may  be  considered  the  fact  whether 
the  proposed  ditch  will  cause  any  overflow  of  Mrs.  M.  's  premises, 
or  backwater  upon  it,  or  will  destroy  the  symmetry  of  her  land, 
or  access  to,  or  egress  from  it,  or  any  actual  damage  that  will 
result  to  her  premises  by  reason  of  the  econstruction  of  the 
proposed  ditch.  But  these  damages  must  be  actual  and  not 
speculative.  If  you  find  that  her  premises  will  not  be  injured 
in  any  respect  whatever  by  said  ditch,  if  located,  that  the  land 
will  be  benefited  as  much  or  more  than  it;  will  be  injured  by  the 
proposed  ditch,  you  may  allow  her  no  damages.1 
i  Marsh  v.  Phelan.     Approved  by  C.  C.  and  S.  C. 

Sec.  1719.     Same  continued — View  of  route  by  jury. 

You  were  ordered  to  view  the  whole  route,  as  located  by  the 
county  commissioners,  of  the  proposed  improvement  and  the 
lands  surrounding.     This  was  for  the  purpose  of  enabling  you 


1462  INSTRUCTIONS   TO   JURY. 

to  determine  the  questions  in  this  case,  and  to  apply  your  own 
judgments  in  regard  to  them  as  well  as  to  the  better  under- 
standing of  the  evidence  given,  and  in  making  up  your  verdict 
you  will  consider  both  the  facts  appearing  to  you  from  the  view 
of  the  premises  and  the  evidence  adduced. 

You  are  to  determine  the  questions  presented  to  you  in  this 
case  not  alone  on  the  evidence  of  witnesses,  but  also  from  your 
view  of  the  route  of  the  proposed  ditch.1 

i  From  Marsh,  et  al.,  v.  Phelan,  et  al.,  Clark  County.  Probate  Court  was 
affirmed  by  the  Circuit  Court,  and  the  latter  was  affirmed  by  the 
Supreme  Court 


CHAPTER  XCVIII. 
ESTOPPEL. 

SEC.  SEC. 

1720.  Defined.  1722.  Intent   to   mislead   not   essen- 

1721.  Conduct  must  cause  prejudice  tial. 

or  injury.  1723.  Statement  must  be  acted  upon. 

Sec.  1720.    Defined. 

"Where  one  person,  by  his  acts  or  declarations  made  delib- 
erately and  with  knowledge,  induces  another  to  believe  certain 
facts  to  exist,  and  that  other  person  rightfully  acts  on  the  belief 
so  induced,  and  is  misled  thereby,  the  former  is  estopped  to 
afterwards  set  up  a  claim  based  upon  facts  inconsistent  with 
the  facts  so  relied  upon,  to  the  injury  of  the  person  so  misled. 
This  definition  embraces  all  the  essential  elements  of  an  estoppel. 
It  will  be  your  duty  to  examine  the  evidence,  and  ascertain 
whether  all  these  elements  are  proved  in  this  case. ' n 

The  doctrine  of  estoppel  is  founded  on  principles  of  morality 

and  is  intended  to  subserve  the  ends  of  justice.     It  is  a  doctrine 

when  properly  understood  and  applied,  that  concludes  the  truth 

in  order  to  prevent  fraud  and  falsehood,  and  imposes  silence  on 

a  party  when  in  conscience  and  honesty  he  should  be  allowed  to 

speak.2 

i  From  Pennsylvania  Co.  v.  Piatt,  47  O.  S.  366. 

2  Van  Rannselaer  v.  Kearney,  11  How.  297;  Bowen  v.  Howenstein,  30  App. 
Cas.   (D.  C.)   585.     Am.  Ann.  Cas.  1013,  E.  1170. 

Sec.  1721.     Conduct  must  cause  prejudice  or  injury. 

The  jury  are  instructed  that  a  person  is  not  estopped  from 
denying  the  truth  of  his  own  statements,  unless  it  appears  that 
they  were  made  in  bad  faith,  or  fraudulently,  or  their  equiva- 

1463 


1464  INSTRUCTIONS   TO    JURY. 

lent,  gross  negligence,  or  that  the  party  setting  up  or  claiming 
such  estoppel  has  been  prejudiced  thereby.1 

i  McKinzie  v.  Steele,  18  0.  S.  38.  An  act  must  be  both  injurious  and  will- 
ful.    Nye  v.  Denny,  18  0.  S.  246;  Penn.  Co.  v.  Piatt,  47  O.  S.  368. 

It  is  of  the  essence  of  estoppel  that  the  act  relied  upon  should  have  been 
injurious.  Smith  v.  Powell,  98  Va.  431;  Lincoln  v.  Gay,  164  Mass. 
537,  49  Am.  St.  480. 

Sec.  1722.    Intent  to  mislead  not  essential. 

The  jury  is  instructed  that  it  is  not  necessary  to  constitute 
an  estoppel  that  a  party  should  intend  or  design  to  mislead; 
it  is  enough  if  the  act  or  declaration  was  calculated  to  and  did 
in  fact  mislead  another  who  acted  in  good  faith  and  with  reason- 
able diligence.1 

i  Rosenthal  v.  Mayhugh,  33  0.  S.  155;  Beardsley  v.  Foot,  14  0.  S.  414;  14 
O.  S.  102;  Blair  v.  Wart,  69  N.  Y.  113. 

Sec.  1723.     Statements  must  be  acted  upon. 

The  jury  are  instructed  that  before  a  party  can  be  estopped 
from  denying  the  truth  of  any  statement  it  must  appear  from 
the  evidence  that  such  statements  have  been  acted  upon  by 
another,  and  that  they  were  acted  upon  in  ignorance,  differently 
from  what  he  otherwise  would  have  done,  and  that  such  person 
will  be  injured  by  allowing  the  truth  of  the  admission  by  the 
declaration  or  conduct  so  acted  upon  by  him  to  be  disproved.1 
i  Penn.  Co.  v.  Piatt,  47  O.  S.  366,  1  Greenleaf's  Ev.,  sec.  209. 


CHAPTER   XCIX. 
EVIDENCE— WITNESSES. 


SEC. 

1724. 
1725. 
1726. 


1727. 
1728. 
1729. 


1730. 
1731, 


1732 


SEC. 

General  instruction  as  to  the       1733. 

evidence. 
Preponderance   and  weight  of 

the  evidence.  1734. 

Evidence    and    testimony  dis-        1735. 

tinguished — Weight       of       1736. 

evidence    may    be    shown 

by  greater  or   less  num-       1737. 

her  of  witnesses  as  jury 

may      view      it — Weight       1738. 

may    be    shown    by    cir- 
cumstances or  inferences. 
Declarations,     statements     or        1730. 

admissions. 
Declarations    against    interest       1740. 

in  criminal  case. 
Inferences    drawn    from    con-        1741. 

duct     of      parties,       and 

omission   to  produce  evi-        1742. 

dence.  1743. 

Credibility  of  witnesses. 
Impeachment      of       witness —       1744. 

What  constitutes  reputa-       1745. 

tion. 
Credibility  of  witnesses — Jury        1746. 

to  consider  physical  con-        1747. 

ditions,     possibilities    or       1748. 

improbabilities. 


Jury  not  at  liberty  to  indulge 
in  capricious  disbelief  of 
testimony. 

Circumstantial  evidence. 

Same — Another   form. 

Circumstantial  evidence  con- 
tinued. 

Negative  and  affirmative  evi- 
dence. 

Weight  given  medical  expert 
testimony  as  to  personal 
injury. 

Medical  testimony  as  to  na- 
ture of  human  blood. 

Uncorroborated  testimony  of 
accomplice. 

Previous  good  character  in 
criminal  case. 

Conduct  importing  guilt. 

Testimony  as  to  recognition 
of  accused. 

Flight   of  accused. 

Consideration  of  improper  un- 
answered   questions. 

Conflict  of  testimony. 

Reasonable   doubt. 

Drunkenness  no  excuse  for 
crime — May  be  consid- 
ered for  what  purpose. 


Sec.  1724.     General  instruction  as  to  the  evidence. 

Tn  determining  the  issues  of  fact  in  this  case,  you  will  take 
into  consideration  all  the  evidence  bearing  upon  the  respective 
questions. 

1465 


1466  INSTRUCTIONS   TO   JURY. 

The  evidence*  is  not  what  counsel  on  either  side  said  to  you 
in  the  opening  statement  they  expected  the  testimony  to  show; 
not  what  they  have  said  to  you  in  the  course  of  the  argument, 
nor  to  the  court  in  your  presence ;  nor  is  it  what  I  may  state  to 
you  as  my  recollection  of  the  testimony  in  the  charge. 

The  opening  statement  is  made  to  enable  you  to  understand 
the  testimony  as  it  is  offered.  The  argument  is  to  assist  you 
in  reaching  a  proper  conclusion,  the  charge  is  to  give  you  the 
law,  which  shall  guide  you  in  your  deliberations.  The  evidence 
is  what  the  witnesses  have  been  permitted  to  say  to  you  while 
upon  the  witness-stand. 

You  are  made  the  sole  judges  of  all  questions  of  fact.  You 
must  determine  the  facts  from  the  evidence  in  the  light  of  the 
law  as  I  have  stated  it  to  you. 

You  are  the  sole  judges  of  the  credit  to  be  given  to  the  wit- 
nesses, and  of  the  weight  of  the  evidence.  Bear  in  mind  that 
the  court  is  to  determine  the  competency,  the  jury  the  weight. 
Courts  admit  evidence  not  by  reason  of  its  weight,  but  because 
of  its  tendency  to  prove  or  disprove  the  issue ;  leaving  its  truth 
or  falsity  and  its  weight  to  the  jury. 

You  may  belieATe  or  disbelieve  all  that  a  witness  has  testified 
to,  or  you  may  believe  or  disbelieve  a  part. 

In  determining  the  credit  to  which  a  witness  is  entitled,  and 
the  weight  which  shall  be  given  to  his  evidence,  you  may  properly 
take  into  account  his  interest  in  the  result  of  the  trial,  his  rela- 
tion to  the  parties  to  the  suit,  the  influence  he  may  be  under, 
his  kinship  to  the  parties,  if  any,  and  his  demeanor  upon  the 
witness-stand. 

A  witness  who  goes  upon  the  witness-stand  and  frankly  gives 
testimony  without  regard  to  whether  it  be  for  or  against  the 
party  calling  him  as  a  witness,  giving  testimony  in  accordance 
with  admitted  facts  in  the  case,  or  that  is  corroborated  by  other 
witnesses,  presents  strong  claims  to  credence  at  your  hands. 

Upon  the  other  hand,  a  witness  who  goes  upon  the  stand  and 
freely  gives  testimony  for  the  side  calling  him,  but  who  testifies 
unwillingly  upon  the  other  side,  or  who  becomes  pert  and  im- 


EVIDENCE WITNESSES.  1467 

pudent  on  cross  examination,  presents  no  such  claims.  The 
testimony  of  such  a  witness  should  be  carefully  scrutinized  by 
the  jury. 

In  weighing  the  evidence  you  should  take  into  account  the 
means  or  opportunities  of  the  witness  to  have  knowledge  about 
the  matters  testified  to.  You  should  also  take  into  account  the 
probability  or  improbability,  the  possibility  or  impossibility  of 
the  story  told  by  the  witness. 

In  determining  the  facts,  gentlemen  of  the  jury,  you  should 
proceed  upon  the  theory  that  all  the  witnesses  have  tried  to 
testify  truthfully.  If  there  be  conflict  in  the  evidence,  as  there 
is  in  nearly  every  case,  you  should,  if  possible,  reconcile  it  with 
the  truth  and  find  the  facts. 

Sec.  1725.     Preponderance  and  weight  of  the  evidence. 

By  preponderance  of  the  evidence  is  meant  evidence  that  you, 
in  your  jury  room,  considering  the  evidence  and  weighing  it, 
conclude  is  the  evidence  that  you  believe  and  that  influences 
your  minds  in  arriving  at  the  conclusion  you  reach. 

The  weight  of  the  evidence  does  not  necessarily  mean  that 
one  side  has  more  witnesses  than  another;  it  simply  means  that 
if,  when  weighing  all  the  testimony  of  all  the  witnesses  with 
reference  to  their  credibility,  correctness  of  memory,  and  to 
the  circumstances  surrounding  their  testimony,  appearing  in 
the  case,  the  evidence  of  one  side  outweighs  that  of  another,  then 
such  side  is  said  to  have  the  weight  of  the  testimony.  The  jury 
are  the  sole  judges  of  the  weight  of  the  testimony  and  the  credi- 
bility of  the  witnesses.  If  one  witness  testifies  directly  opposite 
to  another,  the  jury  is  not  bound  by  that  fact  to  regard  the  weight 
of  the  evidence  as  evenly  balanced.  The  jury  has  the  right  to 
determine  from  the  appearance  of  a  witness  on  the  stand,  bis 
manner  of  testifying,  his  apparent,  candor,  his  apparent  intelli- 
gence <>r  lack  of  intelligence,  bis  relationship,  business  or  other- 
wise, to  the  party,  his  interest,  if  any  may  appear  from  the 
evidence,  his  temper,  feeling  or  bias,  if  any;  and  from  tbis  and 
all  otber  circumstances  appearing  in  connection  with  the  testi- 


1468  INSTRUCTIONS   TO   JURY 

mony  on  the  trial  the  jury  has  the  right  to  determine  which 
witness  is  the  more  worthy  of  credit,  and  to  give  credit  accord- 
ingly. But,  of  course,  if  the  witnesses  are  otherwise  equally 
creditable,  greater  weight  should  be  given  to  the  testimony  of 
those  who  swear  affirmatively  to  the  fact,  rather  than  those  who 
swear  negatively  as  to  the  want  of  knowledge  or  recollection. 
So  if  the  witness  is  an  employee  of  either  party  and  the  jury 
should  believe  that  the  witness  has  testified  under  fear  of  losing 
his  employment,  or  a  desire  to  avoid  censure  or  fear  of  offend- 
ing, or  a  desire  to  please  his  employers,  such  fact  may  be  taken 
into  account  in  determining  the  degree  of  weight  which  ought 
to  be  given  to  the  testimony  of  such  witness.  But  men  are  not 
under  suspicion  or  disability  as  witnesses  simply  because  they 
are  employees,  and  it  will  not  do  to  assume  that  the  man  has 
disregarded  his  oath  and  is  unworthy  of  belief  simply  because 
he  is  an  employee.  It  is  for  you  to  determine  whether  his  rela- 
tion has  or  has  not  in  any  way  embarrassed  or  restrained  him 
from  telling  the  truth. 

Another  Form. — In  speaking  of  proof — preponderance  of  proof — it  is  per- 
haps hardly  necessary  to  say  to  the  jury  that  testimony  is  not  to  be 
measured  by  the  number  of  witnesses.  It  is  not  that  at  all.  You 
are  to  judge  of  the  character  of  each  witness.  You  are  to  determine 
what  weight  should  be  attached  to  any  one  witness's  testimony.  You 
have  seen  the  witnesses  upon  stand  that  have  testified  here.  You 
have  heard  the  depositions  of  others  read.  You  are  to  judge  of  the 
weight  to  attach  to  every  witness's  testimony.  You  have  seen  their 
appearance,  the  evidence  of  candor  or  lack  of  candor  shown;  the 
interest  manifested  by  thorn  or  their  disinterestedness,  as  the  case 
may  be:  and  you  are  out  of  all  to  determine  how  much  weight  shall 
be  attached,  and  determine  upon  the  whole  volume  of  the  testimony, 
and  the  whole  facts  submitted  to  you,  where  the  truth  of  the  matter 
lies:  and  determine  out  of  it  all  whether  the  plaintiff  has  established 
by  the  proof  the  claims  here  made. 

As  to  preponderance  see  Whittaker's  Code  of  Ev.,  sec.  148. 

No  Degrees  of  Preponderance. — There  are  no  degrees  of  preponderance;  hence 
language  should  not  be  used  which  would  lead  the  jury  to  conclude 
that  there  were  degrees,  or  that  the  evidence  must  be  of  a  clear  and 
convincing  character.  Therefore,  to  instruct  the  jury  that  there 
must  be  clear  or  a  fair  preponderance,  would  be  error.  Russell 
v.  Russell,  6  0.  C.  C.  294;  Effinger  v.  State,  9  O.  C.  C.  376. 


EVIDENCE WITNESSES.  1469 

It  means  greater  weight,  not  larger  number  of  witnesses.  Holmes  v. 
Holland,  29  W.  L.  B.  115. 

It  is  not  necessary  to  repeat  the  statement  that  a  preponderance  of  evi- 
dence is  required  to  justify  a  verdict,  with  every  reference  to  the  evi- 
dence made.     Reipe  i\  Elting,  26  L.  R.  A.  769,  89  la.  82. 

Sec.  1726.  Evidence  and  testimony  distinguished — Weight  of 
evidence  may  be  shown  by  greater  or  less 
number  of  witnesses,  as  the  jury  may  view  it 
— Weight  may  be  shown  by  circumstances  or 
inferences — Credibility  to  be  decided  before 
weight  to  be  determind. 

The  greater  weight  of  the  evidence  does  not  necessarily  depend 
upon  the  greater  number  of  witnesses.  It  may,  if  the  jury  so 
view  it,  or  it  may  not  depend  upon  the  greater  number  of  wit- 
nesses if  the  jury,  after  sifting  the  credibility  of  witnesses,  come 
to  the  conclusion  that  one  or  two  or  any  less  than  the  greater 
number  of  them  told  the  truth. 

The  jury  must  bear  in  mind  that  testimony  is  that  which  is 
given  by  the  witness  when  he  is  on  the  witness  stand.  It  may 
not  become  evidence  because  the  jury  may  believe  that  it  is  not 
entitled  to  any  consideration  and  will  discard  part  of  it  or  all 
of  it,  just  as  you  men  deem  proper  in  the  exercise  of  your  con- 
scientious judgment.  You  must  always  consider  the  question 
of  credibility  first  when  there  is  a  sharp  conflict  as  there  is  here, 
between  two  men.  You  will  have  to  decide  which  is  worthy 
of  belief,  because  they  both  can  not  be  telling  the  truth.  One 
of  them  must  be  mistaken.  But  the  greater  weight  of  the  evi- 
dence may  be  made  to  appear  other  than  by  the  mere  statements 
of  witnesses  as  by  circumstances  and  inferences.  In  any  trans- 
action like  this  there  may  be  inferenees  to  be  drawn  from  the 
facts  and  ciroumstaneos.  There  may  be  inferences  to  be  drawn 
from  the  statements  made  by  the  witnesses,  and  that  becomes 
just  as  much  evidence  to  be  considered  by  the  jury  as  are  dircet 
statements  of  the  witnesses  themselves.  So  that  in  determining 
on  which  side  the  weight  is.  the  jury  are  warranted  in  not  only 
taking  the  statements  made  by  the  witnesses  themselves,  but 


1470  INSTRUCTIONS   TO   JURY. 

it  may  consider  the  facts  and  circumstances,  and  the  natural, 
logical  deductions  that  may  be  drawn  therefrom. 

Sec.  1727.    Declarations,  statements  or  admissions — How  con- 
sidered— Civil  cases. 

Declarations  and  statements  (or  admissions)  of  persons  or  of 
a  party  to  an  action  should  always  be  received  by  the  triers  of 
a  cause  with  care  and  caution,  for  the  reason  that  the  parties 
may  not  have  been  understood  at  the  time  the  statements  were 
made ;  that  the  parties  who  now  repeat  them  did  not  fully 
understand  them,  and  the  possibility  that  they  were  not  recol- 
lected and  repeated  correctly  in  court. 

But  if  you  find  that  the  declarations  and  statements  have 
been  made  and  correctly  given  in  evidence,  they  afford  very 
strong  and  convincing  evidence  and  proof,  for  the  reason 
that  parties  are  not  supposed  to  make  declarations  against 
themselves  and  interest.  When  it  appears  that  they  were  under- 
standing^ and  deliberately  made,  it  often  affords  satisfactory 
evidence ;  yet,  as  a  general  rule,  statements  of  the  witness  as 
to  the  verbal  admissions  of  a  party  should  be  received  by  the 
jury  with  great  caution,  as  that  kind  of  evidence  is  subject  to 
much  imperfection  and  mistake.  The  party  himself  may  not 
have  clearly  expressed  his  meaning,  or  the  witnesses  may  have 
misunderstood  him,  and  it  frequently  happens  that  the  witnesses 
by  unintentionally  altering  a  few  of  the  expressions  really  used, 
give  effect  to  the  statement  completely  at  variance  with  what 
the  party  did  actually  say.  But  it  is  the  province  of  the  jury 
to  weigh  such  evidence  and  to  give  it  such  consideration  to  which 
it  is  entitled  in  view  of  all  the  other  evidence  in  the  case.1 

i  Declaration  against  interest  competent  evidence.     Whittaker's  Code  Ev., 
sec.  17;   1  Greenleaf  Ev.  sec.  171. 

Sec.  1728.    Declarations  against  interest  in  criminal  case. 

On  the  part  of  the  state  it  is  claimed  that  there  is  evidence 
in  the  case  tending  to  show  that  the  defendant  at  various  times, 
and  to  various  persons  who  were  before  you  as  witnesses,  made 


EVIDENCE — WITNESSES.  1471 

statements  or  admissions  against  his  interest,  and  which  tended 
to  show  his  guilt.  The  statements  and  declarations  made  by 
the  defendant  and  offered  in  evidence  against  him,  should  be 
carefully  examined  and  considered  by  you.  These  statements 
have  been  offered  by  the  state,  but  the  exculpatory  parts  thereof, 
or  parts  thereof  in  his  justification,  as  well  as  those  which  import 
guilt  are  to  be  received  and  considered  by  you.  You  should  con- 
sider the  entire  statements  or  declarations,  and  in  the  light  of 
all  the  testimony  in  the  case  give  to  such  statements  and  declara- 
tions the  weight  which  in  your  judgments  the  same  are  justly 
entitled  to  receive. 

A  considerable  portion  of  the  evidence  consists  of  testimony 
tending  to  show  conversations  in  which  the  prisoner  and  others 
are  said  to  have  participated.  No  class  of  testimony  is  more 
unreliable  and  a  more  frequent  cause  of  error  in  the  courts  of 
justice  than  the  narration  of  conversations  real  or  pretended. 

The  meaning  or  intention  of  the  person  in  the  conversation 
often  depends  upon  gestures,  mode  of  expression,  or  peculiar 
circumstances,  known  perhaps  but  to  a  few  present.  A  conver- 
sation may  not  be  fully  heard ;  it  may  be  imperfectly  recollected, 
or  inaccurately  repeated,  when  the  omission  or  addition  of  a 
word,  or  the  substitution  of  the  language  of  the  witnesses,  under 
color  of  bias  or  excitement,  or  the  words  actually  used  might 
change  the  sense  of  the  conversation.  This  is  apparent  from 
the  contradiction  daily  manifested  in  the  courts  of  justice  in 
the  narration  of  the  same  conversation  from  the  mouths  of  dif- 
ferent persons.  Tn  considering  this  class  of  testimony,  you 
should  view  it  with  deliberate  care  and  scrutiny.  Tn  this  con- 
nection, however,  I  will  say  to  you  that  whore  a  statement  or 
admission  is  deliberately  and  voluntarily  made  by  the  admission 
or  statement  there  made,  is  care  fully  remembered  and  accurately 
detailed,  such  declarations  or  statements  made  against  interest 
may  be  of  the  most  satisfactory  nature.1 

i  Wm.  K.  Day,  J.,  in  State  v.  Webster,  Trumbull  Co.  Com.  PI.  Conduct 
and  Hayings  of  party  accused  admitted  not,  as  confession,  but  as 
source  of  information  respecting  the  guilt  or  innocence  of  defend- 
ant.    Whittaker's  Ev.  p.  125. 


1472  INSTRUCTIONS   TO   JURY. 

Sec.   1729.     Inferences   drawn  from  conduct   of  parties  and 
omission  to  produce  evidence. 

In  determining  the  questions  involved  in  this  ease,  you  are 
at  liberty  to  look  to  the  conduct  of  the  parties,  and  if  you  find 
from  a  consideration  of  all  the  evidence  that  a  party  has  omitted 
to  produce  evidence  in  elucidation  of  the  subject  matter  in  dis- 
pute which  is  within  his  power,  and  which  rests  peculiarly  within 
his  knowledge,  you  may  draw  such  conclusions  from  it  as  in 
your  judgment  such  omission  warrants ;  while  it  is  not  a  pre- 
sumption of  law  that  such  omission  to  produce  evidence  renders 
it  probable  that  the  party  withholding  it  does  so  because  he 
knows  that  if  it  were  produced  it  would  operate  to  his  prejudice, 
yet  the  law  permits  you  to  draw  such  conclusions  or  inferences, 
and  to  give  to  it  such  weight  as  your  judgment  may  warrant.1 

i  Newby,  J.,  in  Graham  v.  Graham,  Highland  Co.,  Com.  PI.  "The  ordinary 
presumption  where  a  party  fails  to  offer  proof  of  what  he  ought 
to  prove,  if  it  exists,  is  that  the  question  was  not  asked  because 
the  answer  would  have  been  unfavorable."  Whittaker's  Code  of 
Ev.  p.  502. 

Sec.  1730.     Credibility  of  witnesses. 

In  determining  the  credibility  of  the  witnesses  you  may  con- 
sider their  intelligence,  their  ability  to  relate  what  they  saw  or 
heard,  and  the  circumstances  by  which  each  of  them  was  sur- 
rounded. You  may  also  consider  their  manner  on  the  witness- 
stand  while  testifying.  Did  they  show  a  zeal  in  testifying 
against  or  for  either  side?  Did  they  exhibit  a  reluctance  to 
testify  for  or  against  either  side?  You  may  also  consider 
whether  each  witness  was  corroborated  or  contradicted  by  other 
witnesses  in  the  case  of  close  credibility.  You  must  pass  upon 
the  amount  of  credit  you  will  attach  to  every  fact.  That  requires 
you  to  look  at  the  testimony  of  each  witness  in  its  own  and  in 
the  light  of  the  other  facts.  You  may  consider  the  relation  that 
each  witness  bears  to  the  case  and  the  interest  which  he  has  in 
the  result.  If  any  one  of  them  is  to  be  affected  seriously  by  the 
result  of  the  case,  by  your  verdict,  then  in  fixing  on  the  weight 
of  his  testimony  you  should  consider  that  fact.     Some  of  the 


EVIDENCE WITNESSES.  1473 

witnesses  may  have  an  interest  in  the  conviction  of  the  defendant. 
The  defendant  may  have  an  interest  in  his  liberty.  Next  to 
his  interest  in  this  life  is  his  interest  in  his  liberty.  That  is 
human  and  applicable  to  all  of  us.  Your  verdict  may  affect 
this  interest  of  the  state's  witnesses  in  conviction,  and  it  may 
affect  the  defendant's  interest  in  his  liberty.  Witnesses  have 
been  known  to  testify  falsely  by  such  interests  as  I  have  just 
explained,  and  it  is  for  you  to  say  whether  any  of  the  witnesses 
for  the  state  or  the  defendant  have  been  moved  to  testify  falsely 
by  reason  of  such  interest.  In  determining  the  weight  to  be 
attached  to  each  and  every  witness'  evidence,  you  may  also  con- 
sider the  probability  or  improbability  of  the  truth  of  the  state- 
ments which  they  made.  You  are  not  obliged  to  believe  the  state- 
ments of  any  witness  merely  because  he  made  them;  and  you 
may,  if  your  judgment  dictates,  believe  part  and  disbelieve  part 
of  any  witness '  testimony.1 

i  Pugh,  J.,  in  State  v.  Abbott,  Franklin  Co.  Com.  Pleas. 

Credibility  is  a  matter  of  induction,  to  be  determined  by  the  jury,  under 
such  instructions,  as  to  the  reason  of  the  case,  as  may  be  given  by 
the  court.     Wharton's  Cr.  Ev.,  sec.  384. 

Interest. — No  person  is  disqualified  as  a  witness  by  reason  of  interest. 
Whittaker's  Ev.,  sec.  205.  Relationship,  party  sympathy,  personal 
affection  influence  the  perceptive  powers  as  effectively  as  pecuniary 
interest.  Wharton's  Cr.  Ev.,  sec.  376.  Interest  and  sympathy  may 
always  be  shown.     Id.  sees.  376-476-7,  488. 

Credibility  depends  on  capacity  to  observe  and  capacity  to  narrate.  Whar- 
ton's Cr.  Ev.,  sec.  377. 

Sec.  1731.  Impeachment  of  witness— What  constitutes  repu- 
tation. 
A  person's  reputation  for  truth  is  established  by  what  his 
neighbors,  and  the  persons  with  whom  he  generally  associates 
in  a  community,  generally  say  of  him  in  this  regard,  or  from 
the  fad  that  nothing  is  said  of  and  concerning  him.  Tf  they 
generally  say  he  is  untruthful,  thai  makes  his  general  reputation 
for  truth  bad.  On  the  other  hand,  if  a  man's  neighbors  and 
associates  in  a  community  say  nothing  whatever  about  him  as 
to  his  truthfulness,  that  fact  of  itself  is  evidence  that  his  general 


1474  INSTRUCTIONS   TO   JURY. 

reputation  for  truth  is  good.  (Sacket,  sec.  373;  28  Ind.,  206; 
68  Ind.,  238;    132  Ind.,  254.) 

The  reputation  of  a  person  for  truth  must  appear  to  be  gen- 
eral in  a  community  where  he  lives,  or  in  a  community  where 
he  may  temporarily  reside  for  a  sufficient  length  of  time  to 
acquire  a  general  reputation.  The  general  reputation  must 
appear  from  what  people  in  general  say  of  him,  in  the  com- 
munity, and  should  not  be  limited  to  a  particular  class  of  per- 
sons, but  depends  upon  what  is  generally  said  of  him,  or  by  the 
fact  that  people  generally  do  not  discredit  him. 

Whether  or  not  the  general  reputation  of  these  witnesses  has 
been  successfully  impeached  is  for  the  jury  to  determine.  You 
will  consider  all  the  testimony  offered  on  this  point,  that  pro- 
duced by  the  defense  to  impeach,  and  that  produced  by  the  state 
to  support  the  witnesses.  The  credibility  of  all  these  witnesses 
and  the  weight  to  be  attached  to  their  testimony  is  within  the 
exclusive  province  of  the  jury.  You  may  consider  the  standing 
of  the  witnesses  offered,  their  opportunity  to  know  the  people 
with  whom  the  witnesses  sought  to  be  impeached  generally 
mingle  in  the  community  where  they  live ;  whether  the  testi- 
mony shows  that  the  people  with  whom  the  witnesses  associated 
generally  discredit  the  witnesses  for  truth,  or  whether  only  a 
few  of  such  persons  discredit  them ;  or  whether  it  appears  that 
the  reputation  of  such  witnesses  for  truth  was  not  generally 
questioned. 

The  jury  may  also  consider  the  relation  which  the  impeaching 
witnesses  sustain  to  the  prosecution  or  the  defense,  or  to  the 
defendant,  or  to  the  witnesses  sought  to  be  impeached. 

The  jury  may  consider  also  the  interest  which  the  impeaching 
witnesses  may  have  in  the  defense  of  this  case  or  other  alleged 
acts  of  solicitation  of  bribes  testified  to  in  this  case,  if  the  jury 
believe  any  witness  or  witnesses  have  such  interest. 

If  the  jury  should  be  of  the  opinion  that  the  general  reputa- 
tion of  either  or  both  of  the  witnesses  mentioned  for  truth  and 
veracity  in  the  community  where  they  live,  or  temporarily  reside, 
has  been  successfully  impeached,  then  you  may  in  your  discre- 


EVIDENCE WITNESSES.  1475 

tion  disregard  their  testimony  as  being  unworthy  of  belief,  either 
a  part  of  it  or  all  of  it,  as  your  judgment  demands.  But,  not- 
withstanding the  fact  that  you  may  believe  from  the  evidence 
that  the  general  reputation  of  such  witness  or  witnesses  for 
truth  has  been  successfully  impeached,  you  may  still  believe 
their  testimony,  a  part,  or  all  of  it,  if  your  judgment  suggests 
that  you  should  give  credence  to  it.  In  determining  the  weight 
to  be  given  to  the  testimony  of  the  witnesses  sought  to  be  im- 
peached, you  may  consider  whether  it  has  or  has  not  been  cor- 
roborated by  other  witnesses  or  facts  and  circumstances  appear- 
ing in  the  case. 

To  warrant  the  jury  in  coming  to  the  conclusion  that  the 
reputation  of  such  witness  or  witnesses  has  been  successfully 
impeached,  you  must  find  that  the  bad  reputation  is  general  in 
the  community  where  he  lives;  or  that  it  is  generally  bad  in  a 
community  where  he  has  temporarily  resided  for  a  sufficient 
length  of  time  to  have  acquired  a  general  reputation  for  truth ; 
that  is.  that  it  is  generally  so  reported  and  considered  to  be  bad 
in  the  community ;  and  if  it  has  not  been  thus  impeached  the 
jury  should  not  reject  it,  but  should  give  it  consideration  and 
weight,  applying  to  it  the  ordinary  tests  of  credibility. 

Whether  a  witness  has  been  successfully  impeached,  or  how 
far  the  value  of  his  testimony  has  been  impaired  by  impeaching 
evidence  is  within  the  exclusive  province  of  the  jury.  Notwith- 
standing you  may  believe  the  reputation  of  a  witness  for  truth 
is  not  good,  you  may  nevertheless  give  such  weight  to  his  testi- 
mony in  this  case  as  you  may  believe  it  to  be  entitled,  or  you 
may  disregard  it  entirely  if  you  believe  it  entitled  to  no  weight. 
You  are  not  bound  to  take  the  testimony  of  any  witness  as 
absolutely  true,  and  you  should  not  do  so  if  you  believe  his 
testimony  is  untrue  or  unreliable.  The  effect  of  impeaching 
testimony  goes  to  the  weight  that  should  be  given  to  that  of 
the  witness  whose  reputation  is  attacked.  Tt  is  submitted  to  you 
to  better  enable  you  to  determine  in  what  light  to  estimate  his 
testimony. 


1476  INSTRUCTIONS   TO   JURY. 

A  witness  may  be  impeached  by  showing  that  he  has  made 
other  and  different  statements  out  of  court  from  those  made 
before  you  on  the  trial,  as  to  any  material  matter.  And  if  the 
jury  believe  from  the  evidence  that  any  witness  has  made  state- 
ments at  another  time  and  place  at  variance  with  his  evidence 
in  this  case,  regarding  any  material  matter  testified  to  by  him, 
then  it  is  the  province  of  the  jury  to  determine  to  what  extent 
this  fact  tends  to  impeach,  either  his  memory  or  his  credibility, 
or»  detracts  from  the  weight  to  be  given  his  testimony.  It  is 
entirely  a  question  for  the  jury  as  to  what  effect  it  will  have 
upon  you  here.  If  is  not  whether  the  statement  alleged  to  have 
been  made  outside  is  true,  but  whether  the  testimony  given  on 
trial  is  true.  In  determining  the  question  you  will  take  into 
consideration  all  of  the  facts  and  circumstances,  applying  the 
tests  in  determining  the  credibility  of  witnesses.  The  contra- 
diction must  be  as  to  a  material  matter;  and  its  materiality  is 
to  be  measured  by  you  by  the  charge  of  solicitation  of  a  bribe, 
contained  in  the  indictment.  The  question  of  fact  which  you 
are  to  determine  in  this  case  is  whether  the  defendant  corruptly 
solicited  a  bribe,  with  intent  to  influence  his  official  duty, 
i  State  v.  Nye,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1732.     Credibility  of  witnesses — Jury  to  consider  physical 
conditions,  possibilities  or  impossibilities. 

The  jury  in  passing  upon  the  credibility  of  witnesses  and  the 
weight  of  the  evidence,  in  reaching  its  conclusion  may  if  it  sees 
fit  and  deems  proper  "appreciate  that  the  manner  of  an  occur- 
rence as  testified  to  from  the  mouths  of  witnesses  is  not  neces- 
sarily to  be  taken  as  matter  of  fact  even  if  not  in  like  manner 
contradicted.  The  jury  may  consider  physical  conditions,  and 
possibilities  or  impossibilities  and  give  the  same  such  weight 
and  effect  in  comparison  with  the  vocal  utterances  of  any  wit- 
ness, or  any  number  of  witnesses.  It  may  consider  the  fact  that 
witnesses  may  falsify,  while  physical  situations  and  conditions 
may  not.1 
iHong  v.  Lumber  Co.,  144  Wis.  337,  129  N.  W.  633,  140  Am.  St.  1012. 


EVIDENCE WITNESSES.  1477 

Sec.  1733.    Jury  not  at  liberty  to  indulge  in  capricious  disbe- 
lief of  testimony. 

"Wlien  testimony  is  not  of  itself  improbable,  is  not  at  variance 
with  any  proved  or  admitted  facts,  or  with  ordinary  experience, 
and  comes  from  witnesses  whose  candor  there  is  no  apparent 
ground  for  doubting,  the  jury  is  not  at  liberty  to  indulge  in  a 
capricious  disbelief  of  the  testimony  of  a  witness.1 

i  Lonzer  v.  R.  R.  Co.,  196  Pa.  St.  610,  46  Atl.  937.     If  they  do  so,  it  is  the 
duty  of  the  court  to  set  aside  the  verdict.     Id. 

Sec.  1734.     Circumstantial  evidence — Criminal  cases. 

In  criminal  cases  the  evidence  may  be  either  direct  or  circum- 
stantial, or  both ;  if  a  witness  sees,  knows  and  testifies  to  the 
commission  of  the  ultimate  fact  to  be  proven,  that  is  positive  or 
direct  evidence. 

But  it  is  not  always  possible  in  criminal  cases  to  establish 
guilt  by  direct  and  positive  testimony,  nor  is  it  necessary,  and 
the  law  provides  that  circumstantial  evidence  alone,  where  suf- 
ficient to  satisfy  the  mind  beyond  a  reasonable  doubt,  shall 
justify  conviction. 

Circumstantial  evidence  is  proof  of  facts  standing  or  existing 
in  such  relation  to  the  ultimate  fact  or  facts  to  be  proven  that 
such  ultimate  fact  may  be  inferred  or  deduced  from  such  sur- 
rounding fact  or  facts.  However,  it  must  be  remembered  that 
before  there  can  be  any  legal  conviction  of  the  defendant  in  this 
case,  the  evidence  whether  it  be  direct  or  circumstantial,  or  cir- 
cumstantial alone,  must  be  so  clear  and  convincing  as  to  exclude 
from  your  minds,  and  from  the  mind  of  each  one  of  you,  all 
reasonable  doubt  of  the  guilt  of  the  defendant.  Each  and  every 
circumstance  and  fact  from  which  an  inference  is  sought  to  be 
drawn  against  the  defendant  must  be  proven  beyond  the  exist- 
ence  of  a  reasonable  doubt  before  such  inference  can  be  drawn 
therefrom,  and  the  hypothesis  of  guilt  should  flow  naturally 
from  the  facts  found  and  be  consistent  with  them  all. 

Before  any  such  inference  can  be  drawn  therefrom,  and  such 
fact  relied  upon  as  the  basis  of  any  legal  inference  against  the 


1478  INSTRUCTIONS   TO    JURY. 

defendant,  it  must  be  strictly  and  indubitably  connected  with 
the  main  charge,  to-wit :  The  killing  of  the  deceased  by  the 
defendant.  If  the  evidence  in  the  case  can  be  reconciled  with 
the  innocence  of  the  accused,  you  should  so  reconcile  it.  It  is 
not  sufficient  to  entitle  the  jury  to  render  a  verdict  of  guilty 
that  the  facts  and  circumstances  established  by  the  proof  coin- 
cide with,  account,  and  therefore  render  probable,  the  hypothesis 
of  guilt ;  but  such  rjroof  must  exclude  to  a  moral  certainty  every 
reasonable  hypothesis  than  that  of  guilt.1 

i  Wm.  R.  Day,  J.,   in  State  v.  Webster.     See  Wharton's  Cr.  Ev.,  see.   10; 
Wills  on  Cir.  Ev.  188. 

Sec.  1735.     Same — Another  form. 

What  is  meant  by  circumstantial  evidence  in  criminal  cases 
is  proof  of  such  facts  and  circumstances  connected  with  or  sur- 
rounding the  commission  of  the  crime  charged  as  tend  to  show 
the  guilt  or  innocence  of  the  party  charged;  and  if  these  facts 
and  circumstances  are  sufficient  to  satisfy  the  jury  of  the  guilt 
of  the  defendant  beyond  a  reasonable  doubt,  then  such  evidence 
is  sufficient  to  authorize  the  jury  in  finding  a  verdict  of  guilty. 
To  authorize  a  conviction  on  circumstantial  evidence  alone  the 
circumstances  should  not  only  be  consistent  with  the  prisoner's 
guilt,  but  they  must  be  inconsistent  with  any  other  rational 
conclusion  or  reasonable  hypothesis,  and  such  as  leave  no 
reasonable  doubt  in  the  minds  of  the  jury  of  the  defendant's 
guilt.  Circumstantial  evidence  is  legal  and  competent  in  crim- 
inal cases,  and  if  it  is  of  such  character  as  to  exclude  every 
reasonable  doubt,  it  is  entitled  to  the  same  weight  as  direct 
testimony. 

Sec.  1736.     Circumstantial  evidence — Continued. 

Circumstantial  evidence  is  often  the  most  convincing.1  It  is 
difficult  to  fabricate  the  connected  links  in  a  chain  of  circum- 
stances so  as  to  preserve  the  semblance  of  truth.  When  the 
circumstances  detailed  are  real  and  natural  they  will  correspond 


EVIDENCE WITNESSES.  1479 

with  each  other.  When  they  are  inconsistent  with  each  other 
or  irreconcilable  with  the  admitted  or  proven  facts,  then  results 
a  plain  and  almost  certain  inference  that  artifice  has  been  re- 
sorted to  and  that  the  tale  is  not  true.2 

1  "Circumstantial   evidence    is   often    stronger   and   more   satisfactory   than 

direct,    because    it    is    not    liable    to    delusion    or    fraud."     State    v. 
Thorne,  6  Law  Rep.  54. 

2  Gillmer,  J.,  in  Hickox  v.  Ins.  Co.,  Trumbull  Co.  Com.  I'leas. 

Sec.  1737.     Negative  and  afiirmative  evidence. 

Evidence  has  been  offered  tending  to  show  that  the  bell  was 
ringing,  and  evidence  has  been  offered  tending  to  show  that  the 
bell  was  not  ringing  at  that  time,  and  in  considering  the  testi- 
mony upon  this  subject,  you  will  consider  it  a  rule  of  presump- 
tion in  the  law  of  evidence  that,  where  witnesses  are  of  equal 
credibility,  the  one  who  testifies  to  the  affirmative  is  ordinarily 
to  be  preferred  to  the  one  who  testifies  to  the  negative,  for  the 
reason  that  the  one  who  testifies  to  the  negative  may  have  for- 
gotten. It  is  impossible  to  forget  a  thing  that  did  happen.  It 
is  not  possible  to  remember  a  thing  that  never  happened.1 

i  Johnston,  J.,  in  Youngstown  St.  R.  R.  Co.  v.  N.  Y.  L.  E.  &  W.  R.  R.  Co. 

An  instruction  that  the  positive  testimony  of  a  witness  to  the  existence 
of  a  certain  thing,  and  the  testimony  of  another  witness  that  such 
a  thing  does  not  exist,  are  equally  credible,  is  erroneous,  as  it 
ignores  every  well-settled  principle  which  is  applied  in  determining 
the  credibility  of  witnesses,  and  lays  down  the  rule  that  one  witness 
will  counterbalance  another.  Smith  v.  M.  B.  &  T.  Ex.,  30  L.  R. 
A.  504. 

An  instruction  that  "positive  testimony  of  a  small  number  of  witnesses 
that  they  saw  or  heard  a  given  thing  occur  will  outweigh  the  nega- 
tive testimony  of  a  greater  number  of  witnesses  that  they  did  not 
see  or  hear  it,  provided  the  witnesses  are  equally  credible;  but  in 
connection  with  this  instruction  should  be  considered  the  relative 
means  or  opportunity  of  the  several  witnesses  to  see  or  hear  the 
occurrence,  and  H  should  be  carefully  kept  in  mind  that  it  only 
applies  when  the  witnesses  are  credible,"  is  proper.  Draper  v. 
Baker,  61   Wis.  450. 

Affirmative  testimony  is  entitled  to  more  weight  than  that  which  states 
that  the  witness  did  not  see  nor  hear.  Toledo  Con.  St.  Ry.  v. 
Rohner,  9  0.  C.  C.  702.     See  2  O.  415.  426;   T.    (11),  43. 


1480  INSTRUCTIONS   TO    JURY. 

Sec.  1738.     Weight  given  medical  expert  testimony  as  to  per- 
sonal injury. 

As  bearing  upon  the  question  of  the  plaintiff's  injuries,  both 
plaintiff  and  defendant  have  called  medical  experts  to  whom 
hypothetical  questions  have  been  put  for  the  purpose  of  enlight- 
ening you  upon  the  issue  between  the  parties  in  that  respect ; 
that  is,  persons  of  experience  in  the  medical  profession  have  been 
called,  to  whom  questions  embodying  certain  statements  as  facts 
in  the  case  have  been  put,  and  upon  which  statement  of  facts 
the  witness  has  given  his  opinion.  This  is  testimony  which 
should  be  considered  by  you  in  determining  this  question  be- 
tween the  parties,  and  the  weight  to  be  given  to  it  depends  upon 
the  skill  and  experience  of  the  physician,  his  learning,  capacity, 
and  upon  whether  or  not  the  question  and  statement  of  fact 
contained  in  it.  upon  which  the  opinion  is  expressed,  is  a  true 
statement  of  the  facts  as  to  the  plaintiff's  condition,  as  you 
find  them  to  exist  from  the  testimony  in  the  case.  If  the  ques- 
tion with  this  statement  of  fact  put  to  the  witness,  upon  which 
he  expresses  his  opinion,  does  not  embody  the  facts  as  you  find 
them  to  have  been  established  by  the  testimony,  then  the  opinion 
is  of  no  value  in  determining  the  issues  in  the  case,  because 
it  is  given  upon  what  you  find  to  have  been  a  false  premise. 
If,  however,  the  questions  embody  substantially  the  facts  as  you 
find  them  to  exist  and  from  the  testimony,  then  you  should  give 
to  them  such  weight  as  in  your  judgment,  in  the  light  of  all  the 
testimony  in  the  case  they  would  be  entitled  to,  in  determining 
this  question.1 
iWest  v.  Knoppenberjrer,  4  C.  C.   (KS.)    305. 

Sec.  1739.     Medical  testimony  as  to  nature  of  human  blood. 

Experts,  both  medical  and  those  who  have  made  the  nature 
and  properties  of  human  blood  a  special  study,  were  examined 
in  regard  to  some  matters  in  dispute  between  the  state  and  the 
defendant.  These  experts  were  allowed  to  testify  and  give 
their  opinions  on  account  of  the  special  skill  and  knowledge 
they  had  acquired  from  the  study  and  practice  in  reference  to 
the  matters  to  which  their  testimony  referred. 


EVIDENCE WITNESSES.  1481 

And  notwithstanding  their  special  skill  and  knowledge,  you 
are  to  decide  upon  the  value  of  the  testimony  and  award  to 
them,  all  and  each  of  these  experts,  such  weight  as  you  may 
think  their  testimony  deserves;  the  credibility  of  witnesses  who 
have  testified  in  this  case,  as  well  as  the  weight  and  effect  of  the 
circumstances  are  solely  for  your  consideration  and  determina- 
tion. 

In  weighing  the  testimony  of  witnesses,  you  should  take  into 
consideration  the  reasonableness  and  probability  of  the  story 
they  tell  when  on  the  witness-stand,  their  strength  of  memory, 
whether  they  are  contradicted  or  sustained  by  any  reliable  testi- 
mony in  the  case,  any  interest  which  any  witness  may  have,  or 
feelings  in  the  case,  or  any  proper  consideration  developed  by  the 
proof,  which  may  aid  you  in  arriving  at  a  just  conclusion.1 

i  William  R.  Day.,  in  State  v.  Webster.  See,  as  to  identification  of  blood, 
Wharton's  Cr.   Ev..  see.  777a    (8th    Ed.). 

Sec.  1740.     Uncorroborated  testimony  of  accomplice. 

"While  there  is  no  rule  of  law  in  this  state  preventing  the  jury 
from  convicting  upon  uncorroborated  testimony  of  an  accom- 
plice, still  a  jury  should  always  act  upon  such  testimony  witli 
the  greatest  care  and  caution,  subject  it  to  the  most  careful 
examination  in  the  light  of  all  the  other  evidence  in  the  case, 
and  the  jury  ought  not  to  convict  on  such  testimony  alone,  unless 
a  full  and  careful  examination  thereof  has  satisfied  them  beyond 
the  existence  of  a  reasonable  doubt  of  its  truth  and  that  they  can 
safely  report  upon  it.1 

1  Gillmer,  J.,  in  State  v.  Cliamplin.  The  conspiracy  must  he  proved  be- 
yond a  reasonable  doubt.     Ditzler  v.  State,  4  0.  C.  C.  551. 

Corroboration. — The  uncorroborated  testimony  of  an  accomplice  may  be 
sufficient  to  convict  (10  0.  S.  287),  hut  is  generally  not  entitled 
to  much  weight  (1!'  0.  131,  135),  and  the  court  should  caution  the 
jury   as  to    its  unreliability,     Allen    v.    State,    Id  ().   S.   287. 

The  jury  may  convicl  upon  the  uncorroborated  testimony  of  an  accomplice 
if  it  satisfies  them  beyond  a  reasonable  doubt  of  the  guilt.  Com. 
V,  Scott,  123  Mass.  222;  Com.  v.  Elliott,  110  Mass.  104;  Com.  v. 
Snow,  11  Mass.  411. 


1482  INSTRUCTIONS   TO    JU3Y. 

Sec.  1741.     Previous  good  character  in  criminal  case. 

The  defendant  relies  upon  his  previous  good  character  and 
some  evidence  has  been  introduced  upon  that  point.  That  evi- 
dence you  are  to  consider  in  the  case  precisely  the  same  as  the 
rest  of  the  testimony.  A  defendant  in  a  criminal  case  has  the 
right  to  put  in  evidence  concerning  his  former  good  character, 
his  previous  life.  It  is  evidence  tending  to  raise  a  probability 
that  one  who  had  such  a  character  would  not  commit  a  crime. 
It  is  not,  however,  conclusive.  It  is  simply  evidence  to  be  con- 
sidered with  all  the  other  testimony  for  the  purpose  of  deter- 
mining whether  the  proof,  taken  as  a  whole,  establishes  his  guilt 
beyond  a  reasonable  doubt.  If  it  does  not,  even  this  evidence 
may  of  itself  create  a  reasonable  doubt,  and  if  it  does,  he  is 
entitled  to  the  benefit  of  that  doubt.  But  if,  when  you  come  to 
take  the  evidence  of  character  together  with  all  the  other  testi- 
mony submitted  for  your  consideration,  and  you  are  satisfied 
when  you  look  at  it  and  consider  and  weigh  the  effect  upon  your 
minds  and  judgment,  if  ultimately  your  minds  are  convinced 
beyond  a  reasonable  doubt  that  the  defendant  is  guilty,  notwith- 
standing his  standing  and  position  in  the  community,  notwith- 
standing his  previous  good  character,  he  is  guilty  of  the  .judg- 
ment of  the  law,  it  is  your  duty  to  so  pronounce  by  your  verdict. 

It  is  a  matter  of  common  observation  and  experience  that, 
owing  to  a  latent  weakness  in  the  human  character,  men  of  the 
best  standing,  men  whose  lives  have  been  characterized  by  long 
integrity  and  fidelity  in  all  life's  relations  are  found,  on  occa- 
sion when  temptations  are  presented  to  them,  to  yield,  to  give 
way,  and  to  fall  into  the  commission  of  crime.  It  is  temptation 
which  subverts  human  character,  destroys  human  integrity  and 
uproots  human  fidelity,  and  under  the  influence  of  it — under 
the  impulse  of  the  occasion — men  of  that  kind  give  way  when 
it  would  be  expected  they  would  resist.  There  is  no  intimation 
in  making  this  statement  that  the  defendant  has  done  this,  but 
your  attention  is  simply  called  to  that  weakness  of  the  human 
character,  which  needs  no  proof,  because  it  is  common  observa- 
tion and  experience,  and  you  are  instructed  that  it  is  proper  for 


EVIDENCE — WITNESSES.  1483 

you  to  consider  it  in  giving  the  proper  weight  and  effect  to  the 
evidence  touching  the  previous  character  of  the  defendant.1 

i  Pugh,  J.,  in  State  v.  Abbott,  Franklin  County  Common  Pleas.  Char- 
acter may  be  shown.  11  0.  S.  114.  Its  bearing  is  for  jury.  22  0. 
S.  477.  It  is  error,  however,  to  charge  that  it  is  entitled  to  less 
weight  where  the  question  is  one  of  great  criminality.  19  O.  S.  264. 
See  full  discussion  Wharton's  Cr.  Ev.,  sec.  57,  et  seq. 

Reasonable  Effect  of  Good  Reputation — A  Short  Charge. — Testimony  has 
been  offered  and  permitted  to  be  given  to  you  as  to  the  general  repu- 
tat  ion  of  the  defendant  for  bonesty.  "The  reasonable  effect  of  proof 
of  good  reputation  is  to  raise  the  presumption  that  the  accused  was 
not  likely  to  have  committed  the  crime  with  which  he  is  charged. 
The  force  of  this  presumption  depends  upon  the  strength  of  the 
opposing  evidence  to  produce  conviction  of  the  truth  of  the  charge." 
Good  reputation  is  certainly  no  excuse  for  crime,  and  it  is  a  circum- 
stance bearing  indirectly  upon  the  guilt  of  the  accused  which  the 
jury  are  to  consider  in  ascertaining  the  truth  of  the  charge.  The 
evidence  offered  by  the  defendant  of  his  good  reputation  for  honesty 
is  to  go  to  the  jury  and  be  considered  by  them  in  connection  with 
all  the  other  facts  and  circumstances,  and  if  they  believe  the  defend- 
ant to  be  guilty  they  must  so  find  notwithstanding  his  good  reputa- 
tion. 

Nye.  .1..  in   State  v.  Wideman,  Medina  Co.  Com.  Pleas. 

Sec.  1742.     Conduct  importing  guilt. 

It  is  claimed  on  the  part  of  the  state  that  there  is  evidence 
before  you  tending  to  show  conduct  on  the  part  of  the  defendant 
importing  guilt. 

The  conduct  and  statements  of  the  defendant  at  and  after 
the  time  of  his  arrest  should  be  fairly  considered  by  you,  and 
such  allowance  by  you  as  is  reasonably  just,  consid<  ring  the  sur- 
rounding circumstances  under  which  flic  defendanl  was  placed, 
and  the  liability  of  the  witnesses  to  pervert  or  understand  such 
conduct  and  statements.1 

i  \Ym.  R.  Day,  J.,  in  State  v.  Webster,  Trumbull  Co.  Com  PI.  Confessions 
may  be  by  acts  as  well  as  by  words.  Acts  of  a  prisoner  in  hiding 
stolen  property,  and  in  flight,  and  the  conduct  of  an  accused  when 
informed  of  the  accusation.  People  v.  McKee,  36  N.  V.  113;  Jewett 
V.  Banning,  21  X.  V.  27:  Coin.  n.  MePike,  3  Cush.  181.  Confusion, 
embarrassment,  "blushing,"  and  "terror,"  may  be  shown  against 
accused.  Wharton's  Cr.  Ev.,  sec.  7-r>l  and  cases  cited.  In  a  note 
this  quotation  appears  from  a  charge  by  Judge  Learned:   "I  do  not 


1484  INSTRUCTIONS   TO    JURY, 

think  much  reliance  is  to  he  placed  upon  the  manner  of  any  man 
when  he  is  suspected  or  accused  of  crime.  I  mean  whether  lit; 
looks  pale  or  flushed,  or  the  like,  for  it  is  impossible  for  us  to 
tell  how  a  man  may  act  when  he  is  accused  of  crime.  Our  own 
judgment  in  that  is  not  very  reliable;  one  of  you  may  appear  to 
me  flushed  or  frightened,  and  to  another  not  so.  Therefore  I  do 
not  think  much  reliance  is  to  be  placed  upon  the  opinion  of  wit- 
nesses as  to  manner.  I  don't  speak  of  conduct,  but  as  to  manner." 
Id.     See  Russell  v.  State,  53  Mass.  367. 

Sec.  1743.     Testimony  as  to  recognition  of  accused. 

In  considering  the  testimony  of  witnesses  as  to  the  recogni- 
tion of  the  defendant  on  the  night  of  the  alleged  homicide,  you 
are  permitted  to  take  into  consideration  and  consult  your  own 
knowledge  and  experience,  as  to  the  certainty  or  want  of  cer- 
tainty with  which  the  question  of  identity  may  be  determined, 
and  in  determining  the  value  of  the  testimony  of  the  witnesses 
as  to  a  recognition  of  the  defendant,  you  should  examine  into 
the  facts  upon  which  such  witnesses  base  their  testimony.     You 
should  inquire  what  were  the  opportunities  which  such  witnesses 
had  of  knowing  and  recognizing  the  defendant;    what  means 
the  witness  had  of  seeing  and  knowing  the  countenance  and 
person  of  the  defendant ;    the  previous  acquaintance  which  such 
witness  had  with  the  defendant ;   whether  such  acquaintance  was 
casual  or  otherwise,  and  whether  the  witness  was,  at  the  time 
of  the  alleged  recognition  dispassionate,  collected,  observant,  or 
otherwise.     Familiarity  with  the  person  sought  to  be  identified, 
though  not  essential  to  competency,  may  be  of  much  importance 
in  determining  the  weight  to  be  given  to  the  testimony  of  the 
witnesses  testifying  to  the  identity  of  another.1 
i  Wm.  E.  Day,  J.,  in  State  v.  Webster. 

Sec.  1744.    Flight  of  accused. 

The  flight  of  a  person  immediately  after  a  crime  is  committed 
with  which  he  is  charged  is  a  circumstance  in  establishing  his 
guilt,  not  sufficient  of  itself  to  establish  his  guilt,  but  a  circum- 
stance which  the  jury  may  consider  in  determining  the  proba- 
bilities for  or  against  him,  the  probability  of  his  guilt  or  inno- 


EVIDENCE WITNESSES.  14S5 

cence.  The  weight  to  which  that  circumstance  is  entitled  is  a 
matter  for  the  jury  to  determine  in  connection  with  all  the  other 
facts  and  circumstances  called  out  in  evidence  on  the  trial  of 
this  case.1 

i  Nye,  J.,  in  State  v.  Dedrick,  Loraine  Co.  Com.  Pleas.  This  substantially 
follows  an  instruction  approved   in  People  r.  Forsythe,  65  Cal.  102. 

Flight  of  accused  in  the  absence  of  a  good  motive  is  competent  evidence. 
It  is  not  necessary  to  show  that  the  llight  was  on  account  of  the 
charge.  State  v.  Frederick,  69  Me.  400.  Flight  raises  a  presump- 
tion of  guilt.  State  v.  Gee,  S5  Mo.  647;  State  v.  Brooks,  92  Mo. 
542. 

Abbott,  J.,  in  Donnall's  Case  (Trial  of  Robert  Saule  Donnall,  London, 
1877),  charged  the  jury  that,  "a  person,  however  conscious  of  inno- 
cence, might  not  have  the  courage  to  stand  a  trial;  but  might, 
although  innocent,  think  it  necessary  to  consult  his  safety  by 
flight."  Kennedy  v.  Com.,  14  Bush,  341,  is  an  authority  against 
admission  of  explanatory  matters  as  to  flight,  but  the  accused  may 
certainly  explain. 

Sec.  1745.     Consideration  of  improper  unanswered  questions 
by  jury. 

Gentlemen  of  the  jury,  some  questions  have  been  asked  of 
witnesses  which  were  not  permitted  to  be  answered  by  them. 
The  fact  that  questions  have  been  asked  should  not  be  considered 
hy  you,  except  as  they  have  been  permitted  to  be  answered  by 
the  witnesses.  You  should  determine  the  case  and  the  facts 
necessary  to  be  proved  to  establish  the  guilt  of  the  defendant 
from  the  evidence  which  has  been  permitted  to  be  given  to  you 
and  not  threafter  excluded  from  your  consideration. 

Sec.  1746.     Conflict  in  testimony. 

When  there  is  conflict  between  witnesses  in  their  testimony, 
the  rule  for  guidance  of  the  jury  is  that  preference  should  be 
given  to  that  witness  who  has  the  least  inducement  from  interest 
or  other  motive  to  testify  falsely.  Again,  in  determining  which 
of  the  witnesses  are  worthy  of  credit,  you  should  consider 
whether  each  statement  is  probable  or  improbable.  You  are 
not  obliged  to  believe  the  statement  or  statements  of  any  wit- 
ness who  testifies  before  you  merely  because  the  witness  made 


1486  INSTRUCTIONS   TO    JURY. 

such  statement  or  statements.  You  have  a  right,  in  the  exer- 
cise of  your  intelligence  and  in  the  light  of  your  experience,  to 
consider  whether  the  statement  or  statements  accord  with  the 
probability  of  truth.  And,  again,  in  passing  on  the  credit  of 
the  witness,  you  should  consider  whether  any  of  the  witnesses 
have  been  impeached.1 
i  Pugh,  J.,   in   State  v.  Abbott,  et  al.,  Franklin   Co.   Com.  Pleas. 

Sec.  1747.    Reasonable  doubt. 

A  reasonable  doubt  is  an  honest  uncertainty  existing  in  the 
minds  of  a  candid,  impartial,  diligent  jury,  after  a  full  and 
careful  consideration  of  all  the  testimony,  with  an  eye  single 
to  the  ascertainment  of  the  truth,  irrespective  of  the  conse- 
quences of  their  finding.  It  is  not  a  mere  speculative  doubt, 
voluntarily  excited  in  the  mind  in  order  to  avoid  the  rendition 
of  a  disagreeable  verdict.  Such  a  doubt  is  considered  by  the 
law  as  merely  captious,  and  as  an  unreasonable  one. 

To  acquit  upon  trivial  suppositions  and  remote  conjectures 
is,  says  an  eminent  jurist,  a  virtual  violation  of  the  juror's 
oath  and  an  offense  of  great  magnitude  against  the  interests 
of  society — directly  tending  to  the  disregard  of  the  obligation 
of  a  judicial  oath,  the  hindrance  and  disparagement  of  justice 
and  the  encouragement  of  malefactors.  On  the  other  hand, 
the  jury  ought  not  to  condemn,  unless  the  evidence  removes 
from  his  mind  all  reasonable  doubt  as  to  the  guilt  of  the  ac- 
cused, and  he  would  venture  to  act  upon  it  in  a  matter  of  the 
highest  concern  and  importance  to  his  own  interests.1 

A  reasonable  doubt  "is  that  state  of  the  case  which  after  the 
entire  comparison  and  consideration  of  all  the  evidence  leaves 
the  minds  of  the  jurors  in  that  condition  that  they  can  not  say 
they  feel  an  abiding  conviction  to  a  moral  certainty  of  the  truth 
of  the  charge."2 

"A  verdict  of  guilty  can  never  be  returned  without  convinc- 
ing evidence.  The  law  is  too  humane  to  demand  a  conviction 
while  a  rational  doubt  remains  in  the  minds  of  the  jury.  You 
will  be  justified  and  are  required  to  consider  a  reasonable  doubt 


EVIDENCE — WITNESSES.  1487 

as  existing  if  the  material  facts,  without  which  guilt  can  not  be 
established,  may  fairly  be  reconciled  with  innocence.  In  human 
affairs  absolute  certainty  is  not  always  attainable.  From  the 
nature  of  things  reasonable  certainty  is  all  that  can  be  attained 
on  many  subjects.  When  a  full  and  candid  consideration  of 
the  evidence  produces  a  conviction  of  guilt,  and  satisfies  the 
mind  to  a  reasonable  certainty,  a  mere  captious  or  ingenious 
artificial  doubt  is  of  no  avail.  You  will  look,  then,  to  all  the 
evidence,  and  if  that  satisfies  you  of  the  defendant's  guilt,  you 
must  say  so.  If  you  are  not  fully  satisfied,  but  find  only  that 
there  are  strong  probabilities  of  guilt,  your  only  safe  course  is 
to  acquit."3 

i  Judge  Minshall,  in  the  Giddings  Trial. 

-  Approved  in  Morgan  >\  State,  48  O.  S.  377,  as  given  by  0.  J.  Shaw  in 
A\  ebster  case. 

3  By  Judge  Birchard  in  Clark  r.  State,  12  Ohio,  495.  Approved  in  Mor- 
gan v.  State,  48  O.  S.  377. 

Sec.  1748.  Drunkenness  no  excuse  for  crime — May  be  consid- 
ered for  what  purpose. 
"Drunkenness  is  no  excuse  for  crime.  Crime,  when  all  of 
the  acts  of  the  hand  and  mind  which  constitute  it  actually  exist, 
is  not  the  less  criminal  when  committed  by  a  person  intoxicated. 
Yet,  nevertheless,  when  purpose,  premeditation,  and  delibera- 
tion are  necessary  ingredients  of  the  crime,  as  in  murder  in  the 
first  degree,  evidence  of  intoxication  is  admissible,  and  proper 
to  be  taken  into  consideration  by  the  jury,  to  determine  the 
question  as  to  the  intent,  and  premeditation  and  deliberation. 
But  drunkenness  is  a  distinct  and  substantive  fact,  and  when 
set  up  by  the  defendant  as  bearing  upon  these  ingredients  should 
be  satisfactorily  shown  by  testimony  to  have  actually  existed, 
and  that  it  was  not  simulated  or  assumed,  it  must  not  lie  left  to 
mere  conjecture  or  assumption.  Unless  the  drunkenness  is  shown 
to  have  been  to  such  an  extent  as  to  destroy  the  reasoning  facul- 
ties for  tin'  time,  that  is,  that  accused  was  so  drunk  that  he  did 
not  know  what  he  was  about,  it  is  not  entitled  to  great  weight. 
*     *     *     If  the  jury  find     *     *      *     that  the  killing  was  done 


1488  INSTRUCTIONS   TO    JURY. 

while  the  defendant  was  drunk,  and  in  a  moment  of  passion, 
*  *  *  these  are  proper  circumstances  to  be  considered  by 
you  in  order  to  determine  whether  the  killing  is  manslaughter 
or  not.  *  *  *  If  the  defendant  was  suffering  from  an  attack 
of  the  delirium  tremens,  or  total  deprivation  of  his  mental  fac- 
ulties, *  *  *  superinduced  by  intoxication,  *  *  *  this 
exempts  the  defendant  from  responsibility  for  crime,  like  insan- 
ity produced  by  any  other  cause. ' n 

i  Davis  v.  State,  25  O.  S.  369.  "Intoxication  is  no  defense  to  a  prosecu- 
tion for  crime;  but  in  some  cases  evidence  of  intoxication  is  ad- 
missible to  show  that  no  crime  has  been  committed,  or  to  show 
the  degree  or  grade  of  a  crime;  and  in  the  prosecution  for  mal- 
iciously shooting  with  intent  to  wound,  evidence  that  the  defendant 
was  so  much  intoxicated  that  he  could  not  form  or  have  such  intent, 
is  admissible."     Cline  v.  State,  43  0.   S.   332. 


CHAPTER   C. 

FALSE   CLAIMS— MAKING  OUT  AND  PRESENTING  TO 
PUBLIC  OFFICERS. 

SEC. 

1749.  False  claim   under   Code,  sec.  3.  Conspiracy. 

13105.  4.  Weight  of  evidence — Cred- 

1750.  Legal  knowledge  of  a  fact  de-  ibility. 

fined.  5.  Proof  of  prior  and   subse- 

1751.  Intent — Proof  of.  quent  similar  acts. 

1752.  False  claim,  bill  or  account —  6.  Presumption  of   innocence. 

Presented  by  state  officer.  7.  Uncorroborated    testimony 

1.  The  statute.  of  accomplice. 

2.  The  indictment.  8.  Circumstantial  evidence. 

Sec.  1749.     False  claim  under  Code  sec.  13105. 

A  false  claim  may  be  defined  as  one  that  is  untrue.  For 
example,  if  a  claim  is  made  for  more  bricks  than  were  furnished, 
or  for  more  labor  in  excavation  than  was  done,  such  a  claim  is 
a  false  claim. 

The  word  fraudulent  involves  a  somewhat  different  idea.  A 
fraudulent  claim  against  the  city  may  be  defined  as  a  false  claim 
"gotten  up  or  contrived  by  some  person  or  persons  with  intent 

to  present  it  for payment,  and  thus  to  defraud"  the  city. 

You  will  perceive  from  these  definitions  that  a  false  claim  has 
not  as  many  elements  as  a  fraudulent  claim.  A  false  claim  is 
not  a  fraudulent  claim ;  but  a  fraudulent  claim  is  a  false  claim 
and  something  more  added.  That  is.  it  is  a  false  claim  gotten 
up  or  contrived  by  some  person  or  persons  with  the  intention, 
with  the  purpose,  to  present  it  for  payment,  and  thus  to  defraud 
the  party  against  whom  it  is  preferred.1 
i  Pugh,  ,T..  in  State  v.  Abbott,  et  ah.  Franklin  Co.  Coin.  Pleas. 

Sec.  1750.    Legal  knowledge  of  a  fact  denned. 

The  term  legal  knowledge  is  used  because  legal  is  not  synony- 
mous with  knowledge  as  it  is  understood  in  common  or  ordinary 
t?dk  among  men.     Mere  negligence,  or  the  absence  of  ordinary 

1489 


1490  INSTRUCTIONS   TO    JURY. 

business  prudence,  in  the  transaction  of  the  business  of  con- 
structing the  sewer  and  in  presenting  the  claims  by  the  defend- 
ants, would  not  be  equivalent  to  knowledge,  it  would  not  show 
that  they  had  such  knowledge,  guilty  knowledge.  To  warrant 
you  in  finding  that  the  defendants,  or  either  of  them,  knew  that 
the  claim  was  either  false  or  fraudulent,  you  must  be  satisfied 
that  they,  or  the  ones  against  whom  you  so  find,  were  aware  of 
such  facts  or  circumstances  in  relation  to  the  claim,  as  would 
have  created  the  belief  in  the  mind  of  an  ordinarily  prudent  and 
intelligent  person  that  the  claim  was,  in  some  respect,  false  or 
fraudulent. 

' '  In  criminal  as  well  as  in  civil  affairs,  every  man  is  presumed 
to  know  everything  that  he  can  learn  upon  inquiry,  when  he  has 
facts  in  his  possession  which  suggest  the  inquiry." 

It  is  not  true  that  a  person  is  not  chargeable  with  any  more 
knowledge  than  he  chooses  to  have ;  he  is  not  permitted  to  close 
his  eyes  and  ears,  when  he  pleases,  upon  all  sources  of  informa- 
tion, and  then  excuse  his  ignorance  by  saying  that  he  did  not, 
or  does  not,  see  cr  hear  anything. 

Making  a  still  further  application  of  this  law  to  this  case,  if 
you  find,  from  the  evidence,  that  either  or  all  of  the  defendants 
had  knowledge  or  information  of  facts  or  circumstances  in  rela- 
tion to  this  claim,  which  were  sufficient  to  put  an  ordinarily 
jjrudent  person  upon  inquiry,  and  which  were  of  such  a  nature 
that  the  inquiry,  if  prosecuted  with  reasonable  diligence,  would 
certainly  have  led  to  the  discovery  that  the  claim  was,  in  any 
respect,  in  any  particular,  false  or  fraudulent,  then  you  may 
presume  that  he  or  they,  as  the  case  may  be,  knew  the  claim  was 
thus  false  or  fraudulent.  That  state  of  facts,  if  proved,  may 
have  the  same  force  and  effect  as  if  it  had  been  proved  that  he 
or  they  had  actual  knowledge  of  the  false  or  fraudulent  char- 
acter of  the  claim.1 
i  Pugh,  J.,  in  State  v.  Abbott,  Franklin  Co.  Com.  Pleas. 

Sec.  1751.     Intent— Proof  of. 

There  can  be  no  crime  where  there  is  no  criminal  intent.  An 
act  does  not  make  the  actor  guilty  unless  his  intent  was  criminal. 


FALSE  CLAIMS MAKING  OUT  AND  PRESENTING.  1491 

This  wise,  just,  and  reasonable  rule  is  firmly  settled  in  the  whole 
of  the  land,  is  widely  known  and  approved  among  men,  and  is 
recognized  and  observed  in  every  enlightened  system  of  juris- 
prudence. When  an  act  forbidden  by  law  is  proved  to  have 
been  knowingly  done,  no  further  proof  is  needed  on  the  part  of 
the  state  to  obtain  a  conviction  in  the  absence  of  justifying  or 
excusing  facts,  since  the  law  in  such  a  case  prima  facie  pre- 
sumes the  criminal  intent.  It  is  not  a  conclusive  presumption 
which  shuts  out  explanation  and  justification  on  the  part  of  the 
defense.  The  law  infers  the  intent  from  the  act  and  its  charac- 
ter. Although  the  act  forbidden  by  law  was  knowingly  done, 
yet,  if  it  was  not  done  with  a  bad  purpose,  the  defendant  may 
rebut  the  prima  facie  presumption  by  showing  that  the  act  was 
done  from  a  pure  motive.  Therefore,  in  this  case,  if  the  state 
has  convinced  you,  to  the  exclusion  of  all  reasonable  doubt,  that 
the  defendants  presented  a  false  or  fraudulent  claim  for  pay- 
ment to  the  director  of  accounts,  knowing  it  to  be  false  or  fraud- 
ulent, the  intent  to  cheat  and  defraud  would  be  prima  facie  pre- 
sumed against  such  of  the  defendants  as  did  that,  and  the  state 
was  not  required  to  offer  proof  to  show  intent. 

But  if  the  facts  and  circumstances  preceding  the  act,  or 
contemporaneous  with  and  being  part  of  the  transaction  itself, 
as  disclosed  by  the  evidence,  showed  that  the  claim  was  pre- 
sented from  a  pure  motive,  that  is  rebuttal  of  the  presumption 
of  intent.  The  prima  facie  case  made  by  the  state  in  such  an 
instance  and  in  that  way  does  not  take  away  the  presumption 
of  innocence  from  the  defendant,  or  deprive  him  of  a  reasonable 
doubt  in  the  minds  of  the  jury.  The  indictment  charges  only 
an  intent  to  defraud.  It  is  not  necessary,  therefore,  that  the 
state  should  have  proved  that  the  city  had  been  actually  de- 
frauded. If  you  are  convinced  that  the  defendant  knew  the 
false  or  fraudulent  character  of  the  claim  when  it  was  presented, 
you  are  not  obliged  to  look  further  than  that  to  find  the  intent 
to  cheat  and  to  defraud  on  the  part  of  the  defendant.1 

i  Pugh,  J.,  in  State  v.  Abbott,  et  ah,  Franklin  county.  Indictment  for 
presenting  false  vouchers.  This  may  be  so  framed  to  meet  any  case 
upon  the  question  of  intent. 


1492  INSTRUCTIONS    TO    JURY. 

Sec.  1752.     False  claim,  bill  or  account — Presented  by  state 
officer. 

1.  The  statute. 

2.  The  indictment. 

3.  Conspiracy. 

4.  Weight  of  evidence  and  credibility. 

5.  Proof  of  prior  and  similar  acts. 

6.  Presumption  of  innocence. 

7.  V ncorroboratcd  testimony  of  accomplice. 

8.  Circumstantial  evidence. 

1.  The  statute.  It  is  provided  by  statute,  gentlemen  of  the 
jury,  that  whoever,  knowing  the  same  to  be  false  or  fraudulent, 
makes  out  or  presents  for  payment,  or  certifies  as  correct  to  the 
auditor  of  state,  any  claim,  bill,  account,  or  other  evidence  of 
indebtedness,  which  is  false  or  fraudulent  in  whole  or  in  part 
for  the  purpose  of  procuring  the  allowance  of  the  same  or  an 
order  for  the  payment  thereof  out  of  the  treasury  of  the  state, 
and  whoever,  knowing  the  same  to  be  false  and  fraudulent, 
receives  payment  of  any  such  claim,  account  or  other  evidence 
of  indebtedness  from  the  treasurer  of  state,  shall,  if  such  evi- 
dence of  indebtedness  so  made  out  and  presented  or  so  certified 
or  on  which  payment  is  received  is  false  or  fraudulent  to  the 
amount  of  $—— or  more,  he  shall  be  imprisoned  in  the  pen- 
itentiary not  more  than  ten  years  or  less  than  one  year,  etc. 

2.  The  indictment.  The  indictment  in  this  case  charges  the 
defendant  with  having  done  three  of  the  things,  each  of  which 
is  forbidden  by  this  statute,  and  so  charges  in  three  counts. 

This  indictment  goes  with  you  to  your  jury  room  and  it  has 
been  so  thoroughly  threshed  out  and  explained  to  you  in  detail 
during  this  case  that  I  consider  no  further  explanation  of  it 
necessary  here. 

3.  Conspiracy.  In  this  case  evidence  has  been  adduced  by 
the  state  for  the  purpose  of  establishing  a  conspiracy  between 
the  defendant,  S.  and  "R.  The  acts  of  B.  in  this  case  can  not 
be  charged  to  the  defendant,  S.,  nor  is  he  responsible  therefor 


FALSE  CLAIMS — MAKING  OUT  AND  PRESENTING.  14'>.'J 

unless  the  state  lias,  to  the  degree  of  proof  I  have  heretofore 
stated,  proven  to  you  that  there  was  an  agreement  between  S. 
and  B.  to  the  effect  that  they  would  do  the  things  as  charged 
in  either  one.  two  or  all  the  three  counts  of  this  indictment. 

A  conspiracy  exists,  gentlemen  of  the  jury,  where  two  or  more 
persons  agree  to  do  an  unlawful  thing.  This  agreement  need 
not  he  in  writing.  It  need  not  be  by  expressed  words  necessar- 
ily. It  is  sufficient  if  there  is  a  common  understanding  between 
them,  either  express  or  tacit,  to  the  effect  that  they  would  do  the 
unlawful  thing.  But  this  conspiracy,  gentlemen  of  the  jury, 
can  not  be  proven  by  the  declarations  or  acts  of  one  conspirator 
which  are  made  outside  of  court  and  not  under  oath.  If  the 
conspiracy  has  been  proven,  then  the  act,  as  well  as  the  declara- 
tions, of  each  one  will  become  and  are  in  law  the  acts  of  the  other, 
provided  such  acts  or  declarations  are  done  or  made  in  further- 
ance of  the  common  plan  and  before  the  completion  of  the 
conspiracy.  That  is  to  say,  during  the  existence  of  it.  There- 
fore, in  this  case,  gentlemen  of  the  jury,  if  you  should  find  from 
the  evidence  that  B.  and  the  defendant,  S.,  had  agreed  to  make 
out  a  false  and  fraudulent  voucher  which  they  knew  to  be  false 
and  fraudulent,  for  the  purpose  of  having  it  presented  to  the 
state  auditor  to  obtain  a  warrant  on  the  treasurer  for  it,  it  would 
make  no  difference  who  goes  to  the  state  auditor  to  get  the  war- 
rant nor  who  draws  the  money.  Both  would  be  guilty.  And 
that  same  doctrine  applies  to  any  acts  with  reference  to  such 
conspiracy  and  in  carrying  them  out. 

4.  Weight  of  evidence  and  credibility.  "With  reference  to  the 
weight  of  the  evidence,  I  say  to  you,  gentlemen  of  the  jury, 
that  you  are  the  sole  judges  of  the  credibility  of  the  witnesses 
and  of  the  weight  to  be  given  their  testimony.  That  function 
belongs  to  you.  and  not  to  the  court,  and  this  court  can  not  tell 
you,  and  is  not  permitted  by  law  to  tell  you,  what  you  shall 
believe  and  what  you  shall  not  believe,  or  whal  degree  of  cred- 
ence or  credibility  you  shall  attribute  or  attach  t<>  any  evidence 
or  to  any  witness'  testimony.  Tt  is  your  province,  therefore, 
to  determine  exclusively  the  weight  which  shall  be  attached  to 


1494  INSTRUCTIONS   TO    JURY. 

any  witness'  testimony,  and  you  may,  therefore,  believe  all  that 
a  witness  says ;  you  may  believe  a  part  of  it ;  or  you  may 
believe  none  of  it  You  may,  in  your  discretion,  require  no 
corroboration  of  a  witness ;  you  may  require  little  corroboration ; 
you  may  require  much  corroboration.  If  the  evidence  alto- 
gether considered  convinces  you  beyond  a  reasonable  doubt 
of  the  truth  of  the  charges  made  in  any  one  or  more  of  the 
counts  of  this  indictment,  that  is  sufficient  for  a  conviction. 
If  it  fails  to  so  convince  you,  you  must  acquit. 

5.  Proof  of  prior  and  subsequent  similar  acts.  In  this  case, 
gentlemen,  there  has  been  introduced  evidence  of  prior  and  sub- 
sequent similar  acts  to  those  charged  in  this  indictment.  It  is 
a  well  settled  principle  of  law  that  prior  or  subsequent  wrong- 
ful acts,  although  crimes,  are  not  evidence  tending  directly  to 
establish  the  crime  for  which  the  defendant  is  on  trial.  In 
other  words,  evidence  that  the  defendant  may  have  committed 
a  crime  similar  to  this  at  a  prior  date  or  at  a  subsequent  date 
is  not  received  for  the  purpose  of  showing  that  he  must  have 
committed  this  crime.  That  is  not  the  law.  In  certain  kinds 
of  cases  where  it  is  necessary  for  the  state  to  prove  a  plan  or 
motive,  evidence  of  prior  and  subsequent  similar  transactions 
is  admitted  for  the  sole  purpose  of  proving  a  plan,  motive  or 
intent  in  the  case  on  trial,  and  for  the  purpose  of  negativing 
any  innocent  intent  or  plan  which  might  be  drawn  from  the 
evidence  of  the  single  plan  alone.  If  the  state  has  so  proven 
the  charges  of  any  one  or  more  of  the  counts,  the  failure  of 
the  commissioners  of  public  printing  to  approve  the  vouchers 
is  not  a  defense. 

6.  Presumption  of  innocence.  By  the  plea  of  not  guilty  in 
this  case,  the  defendant  not  only  denies  every  material  allegation 
and  averment  of  the  indictment  presented  against  him,  but  he 
stands  clothed  with  the  legal  presumption  of  innocence,  and 
this  presumption  remains  with  him  in  the  examination  and  con- 
sideration of  every  fact'  and  proposition  necessary  to  be  estab- 
lished on  the  part  of  the  state.  This  presumption  is  not  a  mere 
matter  of  form,  but  it  is  a  real  protection  with  which  the  law 


FALSE  CLAIMS MAKING  OUT  AND  PRESENTING.  1495 

shields  him  and  to  be  overcome  by  that  measure  of  proof  which 
convinces  your  mind  of  his  guilt  beyond  the  existence  of  a 
reasonable  doubt.  This  indictment  itself  creates  no  presumption 
of  guilt.  It  is  not  to  be  considered  by  you  as  furnishing  any 
evidence  against  the  accused,  and  it  justifies  no  unfavorable 
inference  on  your  part  against  him.  The  guilt  or  innocence 
of  any  defendant  is  to  be  determined  upon  the  evidence  sub- 
mitted, upon  the  trial;  and  as  I  have  said,  the  presumption  of 
innocence  follows  and  goes  with  the  defendant  through  the 
trial  and  remains  until  overcome  and  overthrown  by  proof  of 
guilt  sufficient  to  exclude  every  reasonable  doubt. 

7.  Uncorroborated  testimony  of  accomplice.  While  it  is  a 
rule  of  law  that  a  person  accused  of  crime  may  be  convicted 
upon  the  uncorroborated  testimony  of  an  accomplice,  still  you 
ought  not  to  convict  upon  the  uncorroborated  testimony  of  an 
accomplice  alone,  unless,  after  careful  examination  of  such 
testimony,  the  jury  is  convinced  beyond  a  reasonable  doubt  of 
the  guilt  of  the  defendant.  You  are,  however,  in  this  case  as 
in  every  other  case,  to  look  to,  weigh  and  consider  all  of  the 
evidence.  What  is  meant  by  corroboration  in  this  connection 
is  evidence  other  than  the  accomplice's  testimony. 

In  regard  to  the  character,  scope  and  sufficiency  of  the  testi- 
mony and  evidence  corroborating  an  accomplice's  testimony,  the 
court  charges  you  that  it  is  not  essential  that  such  corrobora- 
tive evidence  shall  cover  every  material  point  testified  to  by  the 
accomplice  to  warrant  a  verdict  of  guilty  against  the  defendant 
on  trial.  You  as  sole  judges  of  the  credibility  of  the  witnesses 
and  of  the  testimony  and  evidence  submitted  to  you,  will  deter- 
mine to  what  extent,  if  any,  you  require  corroboration  in  order 
to  believe  the  testimony  of  an  accomplice  to  be  true,  and  the 
amount  and  extent  of  corroboration,  whether  little  or  great,  is 
for  you  to  determine.  You  will,  therefore,  look  to  and  consider 
the  other  evidence  adduced  at  the  trial,  as  well  as  the  testimony 
of  the  accomplice,  and  determine  to  what  extent,  if  at  all,  it 
establishes  the  commission  of  the  offense  charged  in  the  indict- 
ment, and  the  defendant's  connection  therewith. 


1496  INSTRUCTIONS   TO   JURY. 

8.  Circumstantial  evidence.  In  this  case  the  state  is  relying 
upon  circumstantial  as  well  as  direct  evidence  to  support  the 
charge  made  in  the  indictment.  Circumstantial  evidence  is 
proof  of  a  series  of  facts  other  than  the  facts  in  issue,  which  by 
experience  have  been  found  so  associated  with  that  fact,  that 
in  the  relation  of  cause  and  effect,  they  lead  to  a  certain  and 
satisfactory  conclusion.  In  order  that  the  defendant's  guilt 
shall  be  proved  beyond  a  reasonable  doubt,  it  is  not  essential 
that  each  circumstance  should  be  proved  beyond  a  reasonable 
doubt,  unless  such  circumstance  is  a  necessary  link  in  a  chain 
of  circumstances,  which  chain  of  circumstances  is  necessary  to 
a  conviction.  A  person  may  be  properly  convicted  by  a  large 
number  of  circumstances,  no  one  of  which,  alone,  is  established 
beyond  a  reasonable  doubt,1 
i  State  v.  Slater,  Franklin  County,  Dillon,  J. 


CHAPTER   CI. 

FALSE  IMPRISONMENT. 


SEC.  BBC. 

1753.  False  imprisonment  defined. 

1754.  Another  definition — Means  of 

accomplishing  detention  1767. 
or  restraint  other  than  1768. 
by  formal  arrest. 

1755.  Different  form  of  definition — 

Detention  while  under 
investigation  at  police 
station. 

1756.  Trespass  to  person — Elements 

— Definition. 

1757.  Burden   on   plaintiff   to   prove 

unlawful   restraint. 
I7">s.   Arrest  and    imprisonment. 

1759.  Arrest  by  officer  without  war- 

rant. 

1760.  Distinction     between    felonies 

and   misdemeanors. 

1761.  Person  arrested  without  war- 

rant      cannot      be      held 

longer  than  is  necessary       1769. 

to  obtain  warrant. 

1762.  Arrest     of     witness    without 

process. 

1763.  Liability  of  several   arresting 

officers. 
1704.  Probable  cause. 

1765.  Probable  cause — Right  of  po- 

lice department  to  make 
investigation. 

1766.  Responsibility   of  chief   of    po- 

lice if  person  brought  in 
for  investigation  under 
suspicion  of  felony,  but 
without     formal     arrest, 


where  there  is  a  formal 
detention  by   mistake. 

Damages. 

False  arrest  and  detention  of 
guest  at  hotel  supposed 
to  be  using  room  for  im- 
moral purposes. 

1.  Statement  of  claim. 

2.  Arrest  and  detention. 

3.  Responsibility       of       hotel 

proprietor  for  arrest — 
Communication  of  facts 
by  him  to  officer. 

4.  Claim  of  justification  that 

wife  of  guest  occupied 
room   without  right. 

5.  Did  proprietor  participate 

in  arrest. 

6.  Compensatory  damages. 

7.  Exemplary   damages. 
False      imprisonment       where 

fact  of  imprisonment  and 
discharge  conceded. 

1.  Statement     of     claims    of 

parties. 

2.  Burden  of  proof  on  plaint- 

iff sat  is  lied  by  fact  of 
imprisonment  and  dis- 
charge. 

3.  Burden    on     defendant    to 

prove;  justification  that 
arrest  was  made  when 
plaintiff  in  commission 
of  misdemeanor. 

4.  When  arrest  may  be  made 

for  misdemeanor. 

1497 


1498  INSTRUCTIONS   TO    JURY. 

Sec.  1753.     False  imprisonment  defined. 

False  imprisonment  is  the  unlawful  arrest  and  detention  of 
the  person  of  another,  with  or  without  a  warrant  or  other  pro- 
cess. 

It  consists  in  an  unlawful  restraint  upon  a  man's  person,  or 
control  over  the  freedom  of  his  movements,  by  force  or  threats ; 
and  every  restraint  or  confinement  is  unlawful  where  it  is  not 
authorized  by  law. 

The  actual  detention  of  a  person,  and  the  unlawfulness  thereof, 
constitute  the  trespass ;   the  gravamen  being  the  unlawfulness  of 
the  imprisonment  or  the  detention.1 
i  Clark  v.  Smith,  37  Utah,   116,   106  Pac.  653,  Ann.  Cas.  1912,  B.   1366. 

Sec.  1754.  Another  definition — Means  of  accomplishing  de- 
tention or  restraint  other  than  by  formal 
arrest. 

False  imprisonment  is  necessarily  a  wrongful  interference 
with  the  personal  liberty  of  an  individual.  The  wrong  may  be 
committed  by  words  alone,  or  by  acts  alone,  or  by  both,  and 
by  merely  operating  on  the  will  of  the  individual,  or  by  personal 
violence. 

It  is  not  necessary  that  the  individual  be  confined  within  a 
prison,  or  within  walls ;  or  that  he  be  assaulted,  or  even  touched. 
Nor  is  it  necessary  that  the  wrongful  act  be  committed  with 
malice,  or  ill  will,  or  even  with  the  slightest  wrongful  intention. 

Nor  is  it  necessary  that  the  acts  be  under  the  color  of  any 
legal  or  judicial  proceeding. 

All  that  is  necessary  is  that  the  individual  be  restrained  of 

liis  liberty  without  any  sufficient  legal  cause  therefor,  and  by 

words  or  acts  he  fears  to  disregard.1 

i  Corner  v.  Knowles,  17  Kan.  436;  Gamier  v.  Squires,  62  Kan.  321:  Whit- 
man v.  Railway,  85  Kan.  150,  116  Tac.  234;  Ann.  Cas.  1912  B.  722. 
Tn  the  latter  case,  where  a  passenger  on  railway  train  was  detained 
by  conductor  to  obtain  statement,  the  court  remarked  that  it  found 
some  difficulty  in  bringing  the  facts  within  the  principles  that 
apply  to  false  arrest  or  imprisonment. 


FALSE  IMPRISON MENT.  149lJ 

Sec.  1755.     Different  form  of  definition — Detention  while  un- 
der investigation  at  police  station. 

False  imprisonment  is  an  injury  to  the  right  of  personal  lib- 
erty. It  consists  in  the  total,  or  substantially  total  restraint 
of  a  person's  freedom  of  locomotion. 

Any  general  restraint  is  sufficient  to  constitute  an  instrument. 

A  person,  however,  can  not  be  imprisoned  who  is  not  cogni- 
zant of  any  restraint,  nor  who  is  induced  by  false  statements 
to  go  where  he  otherwise  would  not  have  gone. 

A  formal  arrest  may  not  be  essential  to  a  false  imprisonment, 
as  it  may  be  committed  by  words  alone,  or  by  acts  alone,  or  by 
both,  or  by  merely  operating  on  the  will  of  the  person. 

It  is  not  necessary  that  he  should  be  confined  within  a  prison, 
or  within  walls. 

It  is  not  essential  that  the  act  be  committed  with  malice  or 
ill  will,  or  even  with  the  slightest  wrongful  intention.  Nor  is 
it  necessary  that  the  act  should  be  done  under  color  of  any  legal 
proceeding.  All  that  is  essential  is  that  the  individual  be  re- 
strained of  his  liberty  without  any  sufficient  legal  cause  there- 
for, by  words  or  acts  which  he  fears  to  disregard.1 

The  imprisonment  must  be  against  the  will  of  the  party  com- 
plaining ;  for  if  he  goes  willingly,  or  of  his  own  accord,  there  is 
no  detention.2 

So,  if  upon  suggestion  to  a  person  that  he  go  to  the  office  of 
the  chief  of  police  at  xhe  city  prison  to  have  an  interview  with 
the  chief  of  police  concerning  an  alleged  criminal  charge  against 
him,  he  goes  to  such  prison  voluntarily,  without  compulsion, 
where  he  has  such  interview  behind  closed  doors,  but  without 
any  detention  by  words  or  force,  there  is  no  unlawful  detention. 

But  a  detention,  even  for  a  short  time,  in  a  room  of  the  eity 
prison  or  in  the  corridor  where  prisoners  are  usually  taken, 
though  not  placed  in  a  prison  cell,  but  which  w;is  not  intended 
being  through  the  mistaken  act  of  a  subordinate  police  officer, 
is  sufficient  to  constitute  an  unlawful  detention,  provided  it  was 
done  without  probable  cause. 
1  Kinkead,  Torts,  sec.  212;   Comer  v.  Knowles,   17   Kan.  441. 


1500  INSTRUCTIONS   TO   JURY. 

2Kinkead,  Torts,  sec.  214;  Floyd  v.  State,  12  Ark.  43,  54  Ann.  Dec. 
250;  State  v.  Lunsford,  81  N.  C.  528. 

Sec.  1756.     Trespass  to  person — Elements — Definition. 

Trespass  to  the  person  is  an  injury  committed  by  one  person 
upon  another  with  violence  actual  or  implied,  known  in  law  as 
false  imprisonment.  To  constitute  the  injury  there  are  two 
points.  1.  The  detention  of  the  person,  and,  2.  The  unlaw- 
fulness of  such  detention.  Every  confinement  of  the  person  is 
an  imprisonment  whether  it  be  in  a  common  prison  or  a  private 
house,  or  even  by  forcibly  detaining  one  in  the  street.  Unlaw- 
ful or  false  imprisonment  consists  in  such  confinement  or  deten- 
tion without  sufficient  authority,  which  authority  may  arise  from 
some  process  from  the  courts  of  justice,  or  from  some  special 
cause  warranted  from  the  necessity  of  the  thing,  such  as  the 
arrest  of  a  felon  by  an  officer  or  a  private  person  without  war- 
rant.1 

i  E.  P.  Evans,  Judge,  in  Solin  v.  Patton,  Franklin  Co.  Com.  Pleas.  Cooley 
on  Torts  (2d  Ed.),  p.  195,  et  seq.  Any  deprivation  of  the  liberty 
of  another,  without  his  consent,  whether  it  be  actual  violence, 
threats  or  otherwise,  constitutes  an  imprisonment  within  the  mean- 
ing of  the  law. 

Sec.  1757.     Burden  on  plaintiff  to  prove  unlawful  restraint. 

The  burden  is  on  the  plaintiff  to  prove  not  only  the  fact  of 
detention  or  imprisonment,  but  also  that  he  was  restrained  or 
detained  or  imprisoned  by  the  defendant,  without  a  warrant, 
or  other  process,  or  by  threats  or  force.  This  he  may  do  by 
proof  of  facts  or  circumstances  which  give  rise  to  the  inference 
or  presumption  that  the  restraint  or  imprisonment  was  wrong- 
ful or  unlawful. 

But  when  plaintiff  by  his  own  evidence  shows  that  he  was 
detained  or  imprisoned  as  the  result  of  judicial  proceedings, 
and  by  the  issuance  and  execution  of  a  warrant,  or  other  legal 
process  issued  thereon,  the  burden  then  is  upon  him  to  show 
something  more  than  a  mere  detention  or  imprisonment.     In 


FALSE  IMPRISONMENT.  1501 

such  case  there  is  no  presumption  arising  from  the  mere  arrest 
and  imprisonment,  and  it  is  therefore  incumbent  on  plaintiff  to 
prove  that  such  arrest  and  imprisonment  was  unlawful.1 
i  Smith  v.  Clark,  37  Utah,  116,  106  Pac.  653,  1912  B.  1366. 

Sec.  1758.    Arrest  and  imprisonment — What  constitutes. 

To  constitute  an  arrest  and  imprisonment  it  is  not  necessary 
that  the  party  making  the  arrest  should  actually  use  violence  or 
force  toward  the  party  arrested,  or  that  he  should  even  touch 
his  body.1  If  he  professes  to  have  authority  to  make  the  arrest, 
and  he  commands  the  person  by  virtue  of  such  pretended  author- 
ity to  go  with  him,  and  the  person  obeys  the  order,  and  they 
walk  together  in  the  direction  pointed  out  by  the  person  claiming 
the  right  to  make  the  arrest,  this  constitutes  an  arrest  and  im- 
prisonment within  the  meaning  of  the  law. 

Any  deprivation  of  the  liberty  of  another  without  his  consent 
whether  it  be  by  actual  violence,  threats,  or  otherwise  constitutes 
an  imprisonment  within  the  meaning  of  the  law.2 

i  Cooley  on  Torts,  160;  Addison  on  Torts,  see.  700. 

2  From  Sohn  v.  Patton,  Franklin  Co.  Com.  Pleas,  E.  P.  Evans,  Judge. 
Manual  seizure  is  not  necessary  to  constitute  an  arrest.  Hill  v. 
Taylor,  50  Mich.  540.  "It  is  the  fact  of  compulsory  suhmission 
which  brings  a  person  into  imprisonment."  Brushaber  r.  Slege- 
mann,  22  Mich.  266.  As  to  what  constitutes  imprisonment  see 
Cooley  on  Torts,  pp.   105-6. 

Sec.  1759.    Arrest  by  officer  without  warrant. 

It  is  expressly  provided  by  statute  in  Ohio  (Code,  see.  13493) 
that  when  a  felony  has  been  committed,  any  person,  whether  an 
officer  or  a  private  person,  may  without  warrant  arrest  another 
whom  he  believes,  and  has  reasonable  cause  to  believe,  is  guilty 
of  the  offense  and  may  detain  him  until  a  legal  warrant  can  be 
obtained,  and  the  statute  further  provides  that  ;i  sheriff,  deputy- 
sheriff,  constable,  marshal,  or  deputy-marshal,  watchman,  or 
public  officer  shall  arrest  and  detain  any  person  found  violating 


1502  INSTRUCTIONS   TO  JURY. 

any  law  of  the  state,  or  any  legal  ordinance  of  a  city  or  village, 
until  a  legal  warrant  can  be  obtained. 

i  Sohn  u.  Patton,  Franklin  Co.  Com.  Pleas;  Evans,  Judge.  See  Cooley 
on  Torts  (2d  Ed.),  pp.  109,  201,  202,  203.  A  right  of  arrest  exists 
where  there  are  well-grounded  suspicions  of  felony.  State  v.  West, 
3  O.  S.  509.  Where  misdemeanor  is  committed  within  presence  of 
officer  he  may  arrest  without  warrant.  State  v.  Lewis,  50  O.  S. 
179.  Marshal's  power  to  arrest  without  warrant.  Code,  sees. 
1849,  7129;   Ballard  v.  State,  43  O.  S.  340. 

Sec.  1760.     Distinction  between  felonies  and  misdemeanors. 

The   distinction   between   felonies   and   misdemeanors   in   this 
state  is  this:    Offenses  which  may  be  punished  by  death  or  im- 
prisonment in  the  penitentiary  are  felonies;    all  other  offenses 
are  misdemeanors.1 
1  Sohn  v.  Patton,  Franklin  Co.  Com.  Pleas,  Evans,  J. 

Sec.  1761.     Person  arrested  without  warrant  can  not  be  held 
longer  than  is  necessary  to  obtain  warrant. 

A  person  who  has  been  arrested  without  a  warrant  can  only 
be  held  for  such  reasonable  time  as  may  enable  the  person  mak- 
ing the  arrest  to  obtain  a  warrant.  It  is  the  duty  of  the  person 
so  making  an  arrest  to  take  steps  to  secure  a  warrant  within 
such  reasonable  time  after  such  arrest  as  he  may  be  able  to 
obtain  the  same. 

So,  therefore,  if  the  person  be  held  in  custody  for  any  longer 
period  than  is  reasonably  necessary  to  obtain  a  legal  warrant 
for  his  detention,  he  will  have  a  right  of  action  for  false  im- 
prisonment against  the  officer  or  person  who  made  the  arrest, 
as  well  as  against  those  by  whom  he  has  been  so  unlawfully  held 
in  custody.  By  the  failure  to  procure  the  necessary  warrant 
for  the  prisoner's  detention,  the  imprisonment  becomes  unlawful 
from  the  beginning,  and  all  concerned  in  it  are  equally  liable.1 
i  Leger  v.  Warren.   62  O.   S.   500. 

Sec.  1762.     Arrest  of  witness  without  process. 

There  is  no  law  in  Ohio  which  authorizes  an  officer  to  arrest, 
without  process,  a  witness  and  hold  him  until  he  gives  bond. 


fat.sk  imprisonment.  1503 

If  the  plaintiff  therefore  was  arrested  and  imprisoned  as  a  wit- 
ness only  until  he  gave  bond  for  his  release,  such  arrest  and 
imprisonment  was  unlawful,  and  is  what  the  law  denominates 
false  imprisonment.1 
i  Bohn    r.  Patton,   Franklin  Co.   Com.   Pleas,   Evans,   .1. 

Sec.  1763.     Liability  of  several  arresting  officers. 

If  the  jury  find  from  the  evidence  that  the  plaintiff  has  been 
falsely  imprisoned  as  alleged  in  his  petition,  and  that  he  was 
thus  falsely  imprisoned  by  the  joint  acts  of  several  wrong-doers, 
then  such  wrong-doers  are  jointly  and  severally  liable  for  such 
joint  act,  and  the  plaintiff  is  under  no  obligation  to  sue  all  such 
wrong-doers,  but  he  may  at  his  election  proceed  against  any  one 
or  more  of  them.     If  you  shall  find  from  the  evidence  that  officers 
N.  and  B.,  and  they  alone,  falsely  arrested  and  imprisoned  the 
plaintiff  at  the  time  in  question,  still  if  the  evidence  shall  further 
show  by  a  preponderance  thereof  that  the  defendant,  E.,  was 
then  present  and  acting  in  concert  with  the  said  N.  and  B.,  and 
was  wrongfully  inciting  them  to  arrest  or  imprison  the  plaintiff, 
then  the  defendant,  E.,  is  equally  liable  with  the  said  N.  and  B., 
and  if  N.  and  B.  are  guilty  of  falsely  imprisoning  the  plaintiff, 
then  the  defendant,  E.,  is  equally  guilty  if  he  procured  them  to 
so  imprison  the  plaintiff,  or  if  he  aided  or  abetted  them  in  so 
doing.     If  you  shall  find  from  the  evidence  that  officers  N.  and 
B.,  and  they  alone,  arrested  and  imprisoned  the  plaintiff,  and 
that  the  defendant,  E.,  was  present  at  the  time  of  said  arrest 
and  imprisonment,  still  if  you  shall  find  that  the  said  E.  did  not 
procure  the  plaintiff  to  be  so  arrested  or  imprisoned,  or  that  he 
did  not  in  any  way  aid,  abet,  or  assist  in  the  arrest  and  imprison- 
ment, or  advise  or  encourage  it,  then  he  is  not  guilty.1 
i  Sohn  v.  Patton,  Franklin  Co.  Com.  Pleas,  Evans,  J.     See  Leger  v.  War- 
ren. 62  O.  S.  500. 

Sec.  1764.    Probable  cause. 

Probable  cause  is  a  reasonable  ground  of  suspicion  supported 
by  circumstances  sufficiently  strong  in  themselves  to   warrant 


1504  INSTRUCTIONS  TO  JURY. 

a  reasonably  prudent,  cautious  man  in  the  belief  that  the  person 
detained  was  guilty  of  the  felony  committed. 

Now  in  considering  the  question  of  probable  cause,  in  the  event 
that  you  find  that  this  detention  was  through  and  by  the  direc- 
tions of  the  chief  of  police,  you  will  look  to  all  the  circumstances, 
to  all  the  evidence  that  you  have  heard  in  this  case,  notwith- 
standing the  court  has  discharged  certain  defendants,  but  you 
may  consider  all  that  was  said  and  done  by  all  of  these  parties, 
the  evidence  relating  to  the  burglary,  the  testimony  of  each  and 
every  person  who  has  been  on  the  witness  stand,  and  determine 
in  your  best  judgment  whether  or  not   there   was  reasonable 
ground    of   suspicion    supported   by   circumstances   sufficiently 
strong  as  to  warrant  a  reasonably  prudent,  cautious  man  in  the 
belief  that  the  plaintiff  was  guilty  of  this  crime  of  robbery.     If 
you  find  that  there  was  such  reasonable  ground  of  suspicion, 
then,  of  course,  there  would  be  probable  cause,  and  it  would  be 
your  duty  to  find  a  verdict  in  favor  of  the  defendant.     If,  on 
the  other  hand,  you  believe  and  find  by  a  preponderance  of  the 
evidence  that  there  was  not  reasonable  ground  of  suspicion  and 
that  the  circumstances  were  not  sufficient  to  warrant  a  reason- 
ably prudent,  cautious  man  in  the  belief  that  this  plaintiff  was 
guilty  of  the  crime  of  robbery  of  the  Davidson  property,  then 
there  would  be  no  probable  cause  and  the  detention,  in  the  event 
that  you  find  that  Carter  directed  the  detention,  would  be  unlaw- 
ful and  the  plaintiff  would  be  entitled  to  your  verdict.1 

i  Bogner  v.  Davidson.  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1765.     Probable  cause — Right  of  officers  of  police  depart- 
ment to  make  investigation. 

In  considering  the  matter  of  reasonable  or  probable  cause  and 
determining  that  fact,  you  may  take  into  consideration  this 
proposition  as  to  the  law  which  I  will  give  you : 

For  the  protection  of  society  and  the  prevention  of  crime. 
there  has  been  established  under  the  law  in  the  city  of  Colum- 
bus, a  department  of  Public  Safety,  containing  a  police  depart- 
ment, having  a  chief  of  police,  detectives  and  policemen.     It  is 


FALSE  IMPRISONMENT.  1505 

their  duty  when  a  crime  of  felony  has  been  committed  to  make 
an  investigation  and  ferret  out,  if  possible,  the  perpetrator  or 
perpetrators  of  such  felony  so  committed,  and  in  making  such 
investigation,  if  they  find  a  reasonable  ground  of  suspicion 
pointing  to  a  certain  individual  or  to  certain  individuals  as  the 
one  or  ones  guilty  of  such  crime,  and  such  suspicion  is  supported 
by  circumstances  sufficiently  strong  to  warrant  a  cautious  man 
in  his  belief  that  such  person  or  persons  are  guilty,  then  I  charge 
you  that  it  is  within  the  right  of  the  police  department  to  cause 
such  suspected  person  or  persons  to  be  brought  before  the  chief 
of  police  and  investigated  and  interrogated  as  to  such  crime, 
and  no  cause  of  action  will  lie  therefor  against  such  officials, 
if  only  an  investigation  is  made,  and  there  is  no  unlawful  de- 
tention. 

The  jury  may  take  into  consideration  all  that  was  done  by 
way  of  investigation,  all  of  the  knowledge  that  may  have  come 
home  to  the  defendant  in   respect  to  this  alleged  offense,   as 
reflecting  on  the  question  of  probable  cause.1 
1  Bogner  v.  Davidson,  Franklin  Co.  Com.  Pleas,  Kinkead.  J. 

Sec.  1766.  Responsibility  of  chief  of  police  if  person  brought 
in  for  investigation,  under  suspicion  for  a 
felony,  but  without  formal  arrest,  where  there 
is  a  formal  detention  by  mistake. 

Who  was  responsible  for  the  detention  of  the  plaintiff  in  this 
ease?  Was  it  the  chief  of  police,  or  was  it  officer  C,  acting 
either  from  force  of  habit,  or  from  a  misunderstanding  of  the 
directions  given  by  the  chief,  or  was  he  acting  under  a  specific 
order  given  him  by  the  chief  of  police?  If  lie  was  acting  as 
claimed  by  the  plaintiff  in  his  evidence,  under  the  directions 
of  chief  of  police,  tben,  of  course,  he  was  imprisoned  through 
the  direct  orders  of  ehipf  of  police  Cnrter. 

The  claim  of  the  plaintiff  is  that  the  chief  of  police  said  "Take 
this  man  down  stairs  and  lock  him  up."  That  is  the  precise 
language  he  uses  in  his  testimony.  The  claim  of  the  defendant, 
the  chief  of  police,  is  "Take  this  man  down  in  the  corridor  and 
lpt  him  wait  until  his  wife  comes." 


1506  INSTRUCTIONS  TO  JURY. 

Now  upon  that  testimony  you  will  determine  whether  or  not 
the  imprisonment  was  through  the  direction  of  chief  of  police, 
or  whether  it  was  not.  If  it  was  not  under  the  specific  order 
or  direction  of  the  chief  of  police,  then,  gentlemen  of  the  jury, 
I  charge  you  that  if  it  was  made  by  officer  C,  either  through 
a  misunderstanding  or  on  his  own  responsibility,  and  if  he  was 
detained  under  those  circumstances  without  the  knowledge  of 
chief  of  police,  then  the  law  will  not  hold  the  chief  of  police 
for  that  detention  if  it  was  unlawful  unless  or  until  the  chief 
of  police  had  knowledge  of  that  detention. 

The  law  places  the  responsibility  upon  the  chief  of  police  for 
the  custody  of  all  prisoners  that  are  placed  in  the  city  prison. 
But  the  chief  of  police  can  not  be  responsible  under  any  and  all 
circumstances,  and  can  only  be  responsible  when  he  has  a  duty 
to  perform  or  when  he  has  knowledge  brought  to  him  in  reference 
to  or  concerning  the  detention  of  prisoners. 

Now  if  you  determine  under  the  instructions  just  given  you 
that  chief  of  police  was  not  responsible,  did  not  intend  and 
did  not  know  that  the  plaintiff  was  sent  down  stairs  to  be  locked 
up  and  he  did  not  have  any  knowledge  that  he  was  locked  up, 
and  had  no  opportunity  to  right  the  mistake,  if  it  was  a  mistake, 
then  there  is  not  any  responsibility  on  the  part  of  the  chief  of 
police,  the  defendant.  But  if,  on  the  other  hand,  you  find  from 
the  evidence  that  the  claim  of  the  plaintiff  is  right,  then  I  say 
to  you  that  under  such  circumstances  the  detention  would  be 
unlawful,  unless  it  was  on  a  reasonable  ground  of  suspicion.1 
1  Bogner  v.  Davidson,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1767.    Damages. 

If  you  find  that  the  defendant  is  guilty  as  charged  in  the 
petition,  he  is  liable  to  the  plaintiff  for  such  damages  as  the  law 
denominates  compensatory,  although  he  may  have  acted  in  good 
faith  and  in  the  honest  belief  that  he  was  discharging  his  duty 
as  an  officer;  but  if  you  sball  find  that  the  defendant  arrested 
and  imprisoned  the  plaintiff  maliciously,  then  the  defendant  is 
liable  to  the  plaintiff  for  compensatory  damages,  and  you  may, 


FALSE  IMPRISONMENT.  1507 

if  you  see  proper,  also  assess  further  damages  as  smart  money, 
that  is,  exemplary  damages.  The  compensatory  damages  are 
allowed  to  compensate  the  plaintiff  for  the  actual  injury  he  has 
sustained.  Exemplary  damages  are  given  as  smart  money  in 
the  way  of  pecuniary  punishment.  If  you  find  for  the  plain- 
tiff, you  should  allow  him  full  compensatory  damages,  that  is, 
such  as  will  fully  and  reasonably  compensate  him  for  the  injury 
he  has  sustained.  The  elements  for  which  compensatory  dam- 
ages may  be  allowed  include  pain  and  suffering,  if  any,  both 
mental  and  physical,  the  loss  of  time,  if  any,  in  consequence  of 
such  false  imprisonment,  and  injury,  if  any,  to  the  reputation 
or  social  position,  as  well  as  for  shame  and  mortification  caused 
by  the  false  imprisonment;  and  also  reasonable  attorney's  fees 
to  the  plaintiff  for  the  services  of  the  attorneys  in  the  prosecu- 
tion. And  if  you  find  that  the  defendant  not  only  falsely,  but 
that  he  also  maliciously,  imprisoned  the  plaintiff,  then  you  may 
allow  the  plaintiff,  in  addition  to  compensatory  damages,  such 
further  sum  by  way  of  exemplary  damages  as  you  in  your 
judgment  may  think  just  and  proper  in  view  of  all  the  evidence 
and  circumstances. 

But  if  you  should  find  from  the  evidence  that  the  defendant 
is  guilty  as  charged,  but  tbat  in  making  the  arrest  complained 
of,  and  in  the  detention  of  the  plaintiff,  the  defendant  acted 
in  good  faith  and  without  malice,  then  such  fact  should  be  con- 
sidered by  the  jury  and  the  damages  awarded  should  be  confined 
to  compensatory  only.  Exemplary  damages  should  not  be 
allowed  against  an  officer  who  makes  or  causes  an  illegal  arrest 
unless  he  acts  in  bad  faith,  or  is  guilty  of  some  oppression  or 
misconduct.1 
i  Sohn   v.  Patton,  Franklin   Co.   Com.   Pleas.    Fvans,   J. 

Sec.  1768.     False  arrest  and  detention  of  guest  at  hotel  sup- 
posed to  be  using  room  for  immoral  purposes. 

1.  Statement  of  claims. 

2.  Arrest  and  detention. 

3.  Responsibility  of  hotel  proprietor  for  arrest. 


1508  INSTRUCTIONS  TO  JURY. 

4.  Claim  of  justification  that  wife  of  guest  occupied  room 

without  right. 

5.  Did  the  proprietor  participate  in  arrest? 

6.  Compensatory  damages. 

7.  Exemplary  damages. 

1.  Statement  of  claims.  The  action  is  one  for  false  arrest  or 
imprisonment  in  which  the  plaintiff  seeks  to  recover  the  sum  of 

$ .     The  burden  of  proof  is  on  the  plaintiff  to  show  that  the 

defendant  in  some  way  participated  in,  and  jointly  with  the 
officer  caused  the  arrest  of  the  plaintiff,  which  is  the  sole  question 
of  fact  submitted  to  the  jury  for  determination.  Where  more 
than  one  person  participates  in  causing  an  arrest,  each  and  all 
are  legally  responsible  for  damages  resulting  if  the  arrest  turns 
out  to  be  unlawful. 

It  is  alleged  by  plaintiff,  and  the  undisputed  evidence  shows 

that  plaintiff  was  arrested  on by  officer and  taken 

in  an  automobile  to  the  city  prison,  where  he  was  examined  by 
the  chief  of  police  and  then  discharged. 

2.  Arrest  and  detention.  An  arrest  signifies  the  restraint  of 
a  man's  person.  Mere  words  are  sufficient  to  constitute  an  arrest 
where  the  person  submits  against  his  will.  Circumstances  must 
be  such  as  to  indicate  that  the  party  is  actually  under  restraint 
and  within  the  power  of  the  officer.  In  this  case  the  plaintiff 
was  told  by  the  defendant  that  he  would  call  an  officer.  Plain- 
tiff knew  that  the  officer  was  coming.  The  officer  went  to  the 
room  in  the  hotel  which  plaintiff  occupied,  and  after  some  con- 
versation, told  the  plaintiff  he  would  have  to  go  down  before 
the  chief  of  police.  He  went  with  the  officer  in  the  automobile 
to  the  city  prison.  To  constitute  false  imprisonment  it  is  not 
necessary  that  the  person  detained  should  be  confined  in  a 
prison.  The  only  essential  is  that  the  individual  be  restrained 
of  his  liberty  without  legal  right  therefor,  the  place  being  im- 
material. The  court  is  of  the  opinion  and  so  finds  as  matter 
of  mixed  law  and  fact  that  there  was  such  detention  and  restraint 
of  the  liberty  of  the  plaintiff  in  this  case  as  to  constitute  false 


FALSE  IMPRISONMENT.  1509 

arrest  and  imprisonment,  provided  it  was  without  legal  cause 
or  justification. 

3.  Responsibility  of  hotel  proprietor  for  arrest — Communi- 
cation of  fads  by  him  to  officer.  The  next  question  then,  is 
whether  the  defendant  Y.  is  responsible  for  the  arrest  and  de- 
tention if  it  was  unlawful. 

A  private  citizen  does  not  have  the  right  to  make  an  arrest 
for  a  mere  misdemeanor.  A  police  officer  may  arrest  and  detain 
a  person  when  found  at  the  time  of  the  arrest  violating  a  law 
of  this  state,  such  violation  constituting  a  misdemeanor.  Be- 
sides the  one  actually  making  the  arrest  others  may  become  liable 
for  false  imprisonment  by  indirectly  participating  therein. 
Officers  may  make  arrests  upon  information  furnished  them  by 
private  citizens  or  at  the  instigation  of  private  persons  if  a 
private  citizen  merely  calls  the  attention  of  an  officer  to  a  sup- 
posed commission  of  a  crime  without  other  direction  and  the 
officer  arrests  the  person  on  his  own  responsibility  for  what  he 
assumes  to  be  an  offense  committed  in  his  presence,  for  a  mis- 
demeanor, the  private  citizen  under  such  circumstances,  who  docs 
nothing  more  than  communicate  the  fact  to  the  officer,  does  not 
render  himself  liable.  Though  a  private  citizen  states  to  the 
officer  what  he  knows  of  a  supposed  offense,  or  that  parties  are 
guilty  of  a  supposed  offense,  even  though  he  expresses  the  opin- 
ion that  there  is  ground  for  arrest  but  without  making  any  charge 
or  requesting  an  arrest,  does  not  thereby  make  himself  liable 
for  a  resulting  wrongful  arrest. 

The  answer  of  the  defendant  alleges  that  he  called  an  officer 
for  the  purpose  of  compelling  the  parties  to  leave  the  premises. 
An  officer  has  no  authority  to  do  any  such  tiling,  lie  can  only 
arrest  when  a  party  is  in  the  act  of  committing  a  misdemeanor, 
such  as  trespassing  upon  the  property.  The  jury  will  determine 
the  fact  whether  the  defendant  was  responsible  fur  causing  the 
arrest  of  plaintiff.  Tn  order  to  hold  defendant  for  the  arrest 
it  is  accessary  thai  he  Rhall  have  done  something  more  than 
merely  to  inform  the  officer  that  lie  had  a  couple  iu  the  room 
that  were  not  married.     It  is  incumbent   upon  the  plaintiff  to 


1510  INSTRUCTIONS  TO  JURY. 

prove  by  a  preponderance  of  the  evidence  that  the  defendant 
advised  or  requested,  or  in  some  manner  participated  with  the 
officer  in  making  or  causing  the  arrest.  If  you  find  that  de- 
fendant did  nothing  more  than  to  state  the  facts  to  the  officer, 
then  you  cannot  find  him  responsible  for  the  arrest.  But  if 
you  find  that  he  asked  or  requested  the  officer  to  make  the  arrest, 
or  in  some  manner  participated  therein,  then  you  must  find  him 
equally  guilty  with  the  officer  for  the  arrest. 

4.  Claim  of  justification  that  wife  of  guest  occupied  room  with- 
out right.  The  defendant  seeks  to  justify  the  arrest  on  the 
ground  that  plaintiff  was  a  guest  in  the  hotel  of  defendant,  hav- 
ing been  assigned  a  room  therein  occupied  by  himself  alone ;  that 
on  the  morning  defendant  having  been  advised  that  a  woman 
had  come  into  the  room  assigned  plaintiff,  went  to  the  room 
and  looking  through  the  transom  saw  the  plaintiff  and  the  woman 
fully  dressed  having  sexual  intercourse ;  that  he  thereupon  or- 
dered said  parties  to  vacate  the  room,  wbieh  they  refused  to  do; 
that  he  thereupon  called  an  officer  for  the  purpose  of  compelling 
the  parties  to  leave  the  premises;  that  upon  the  appearance  of 
the  officer  they  still  refused  to  go ;  that  defendant  at  the  time  did 
not  know  the  woman  in  the  room  was  the  wife  of  plaintiff;  that' 
she  had  not  been  registered  as  a  guest  of  bis  hotel,  or  been  in- 
vited or  authorized  by  him  to  enter  or  make  use  of  the  room. 
This,  gentlemen,  the  court  states  to  you  as  matter  of  law  under 
the  facts  in  this  case,  is  not  a  ciefense  to  plaintiff 's  cause  of  action, 
because  the  woman  was  the  wife  of  the  plaintiff. 

A  hotel  keeper  holds  out  his  house  as  a  public  place  to  which 
travelers  may  resort',  and  of  course,  surrenders  some  of  the  rights 
which  he  would  otherwise  have  over  it.  A  hotel  keeper  sustain- 
ing his  quasi  public  character  is  invested  with  many  privileges 
and  burdened  with  correspondingly  great  responsibility.  Except 
as  the  common  law  is  modified  by  statute,  an  inn  keeper  may  con- 
duct his  inn  as  he  deems  best  so  long  as  be  does  not  violate  tbe 
rights  of  bis  guests.  He  may  eject  persons  who  are  disorderly. 
But  in  this  case  the  plaintiff  had  the  right  of  occupancy  of  this 
room  as  a  guest.    His  wife  at  the  time  of  the  arrest  was  not  oc- 


FALSE  IMPRISONMENT.  1511 

cupying  the  room  in  the  sense  and  meaning  of  a  guest,  that  is 
using  and  occupying  it  at  night  for  sleeping  purposes  and  during 
the  whole  of  a  day  or  a  material  part  thereof;  she  was  there  as 
a  visitor  of  her  husband. 

While  a  room  in  a  hotel  occupied  by  a  guest  is  not  in  the  full 
legal  sense  his  dwelling  house,  still  under  proper  limitations  a 
proprietor  may  be  bound  to  admit  those  who  have  business  or 
other  rightful  or  legal  relations  with  a  guest.  This  may  be 
considered  as  derived  from  the  rights  of  the  traveler. 

In  this  case  it  is  conceded  that  plaintiff's  wife  was  stopping 
at  the  hospital  with  a  sick  child,  staying  there  at  night;  that 
plaintiff  informed  the  clerk  that  his  wife  was  coming  and  was 
told  by  the  clerk  to  have  her  register.  But  it  is  clear  that  plain- 
tiff on  taking  his  wife  into  the  room,  did  not  state  to  those  in 
charge  that  his  wife  was  going  into  his  room  as  a  visitor.  With- 
out regard  to  whether  that  would  be  a  prudent  thing  to  do,  it 
does  not  affect  the  legal  rights  and  duties  of  the  parties  concern- 
ing the  arrest  of  plaintiff  in  this  case.  The  undisputed  evidence 
as  shown  by  the  room  cards  is  that  the  defendant  charged  and 
received  one  dollar  for  the  occupancy  of  the  room  by  the  wife 
of  plaintiff  for  two  days.  This  constitutes  in  law  a  recognition 
of  the  relation  of  guest  of  the  wife  of  plaintiff  at  the  hotel  dur- 
ing the  two  days  involved. 

5.  Did  the  proprietor  participate  in  arrest.  Directing  the 
attention  of  the  jury  to  the  one  question  of  fact  wdiich  you  are 
to  decide,  viz. — which  is  whether  the  defendant  was  jointly  re- 
sponsible with  the  officer  in  causing  and  making  the  arrest,  you 
will  determine  whether  defendant  by  his  conduct  and  his  state- 
ments became  responsible  for  the  arrest.  If  you  find  that  he 
was  not,  your  verdict  will  be  for  the  defendant.  If  you  find  that 
he  was  responsible  jointly  with  the  officer  for  the  arrest,  your 
verdict  should  be  for  the  plaintiff. 

6.  Compensatory  damages.  In  such  case  you  will  award  plain- 
tiff such  compensatory  damages  as  will  justly  compensate  him 
for  the  injury  sustained.  The  elements  for  which  conpensatory 
may  be  allowed  include  pain  and  suffering,  if  any,  both  mental 


1512  INSTRUCTIONS  TO  JURY. 

and  physical,  as  well  as  for  shame  and  mortification  caused  by 
the  false  arrest  and  detention.  Compensatory  damages  can  only 
be  awarded  in  a  case  like  this,  unless  the  fact  and  circumstances 
appearing  in  the  evidence  disclose  that  the  defendant  acted  with 
malice  or  maliciously.  If  it  appears  that  defendant  did  act  with 
malice,  then  exemplary  or  punitive  damages  may  be  allowed. 

False  imprisonment  is  an  injury  to  the  right  of  personal  lib- 
erty; the  right  of  locomotion,  to  go  where  you  please  as  long 
as  you  are  within  your  own  rights.  It  also  involves  some  right 
of  social  position. 

7.  Exemplary  damages.  If  it  appears  from  the  evidence  that 
the  defendant  acted  with  malice  or  maliciously,  then  the  plain- 
tiff may  be  entitled  to  exemplary  or  punitive  damages. 

Exemplary  damages  are  damages  in  addition  to  compensatory 
damages;  they  are  assessed  for  the  sole  and  express  purpose  of 
setting  an  example  so  that  other  persons  under  like  circumstances 
will  have  due  regard  for  the  rights  of  persons.  If  under  all  the 
facts  and  circumstances  in  this  case  the  jury  find  that  the  defend- 
ant was  not  warranted  in  doing  what  he  did,  that  he  acted  wan- 
tonly and  recklessly,  in  disregard  of  the  rights  of  the  plaintiff; 
if  you  should  believe  that  after  hearing  the  statement  of  the 
plaintiff  and  his  wife  and  their  claims  that  they  were  married, 
that  the  defendant  acted  recklessly  under  all  circumstances,  that 
there  was  reasonable  and  fair  opportunity  for  obtaining  the 
knowledge  of  the  fact  before  taking  action,  then  you  would  be 
justified  in  assessing  exemplary  damages. 

Malice  as  used  in  law,  does  not  mean  personal  ill  will,  hatred 
or  revenge;  it  means  on  the  other  hand,  a  lack  of  good  faith ; 
such  reckless  and  wanton  disregard  of  the  rights  of  another  as 
to  constitute  either  a  willful,  or  wanton,  or  intentional  violation 
of  such  right. 

On  the  question  of  the  extent  of  the  lack  of  good  faith  or  mal- 
ice, you  will  look  to  all  the  facts  and  circumstances  concerning 
the  presence  of  the  wife  of  plaintiff  in  his  room,  as  well  as  the 
manner  in  which  the  plaintiff  registered  as  a  guest.  You  may 
ask  yourselves  the  question,  how  would  the  presence  of  the  wife 


FALSE  IMPRISONMENT.  1513 

in  the  room  of  plaintiff  under  the  circumstances  shown  by  the 
evidence,  appear  to  an  ordinarily  prudent  proprietor  of  a  hotel, 
having  due  regard  for  the  rights  of  his  guest  as  well  as  for  the 
good  name  of  his  hotel.  You  may  consider  what  impression,  if 
any.  the  facts  and  conditions  shown  by  the  evidence  would  have 
made  on  the  mind  of  an  ordinary  prudent  person  who  has  and 
exercises  proper  regard  for  the  rights  of  guests  as  well  as  of  his 
own  rights. 

If  the  facts  and  circumstances  are  regarded  by  you  as  suffi- 
cient to  cause  an  ordinarily  prudent  hotel  proprietor  to  have  a 
just  and  reasonable  suspicion  that  the  plaintiff  was  using  the 
room  for  an  immoral  purpose,  you  may  consider  what  steps,  in 
such  event,  such  a  proprietor  would  have  taken  or  should  have 
taken  to  protect  his  hotel  from  such  abuses  or  from  such  an  abuse, 
if  it  had  actually  existed. 

If  it  had  turned  out  that  the  woman  who  was  present  in  de- 
fendant's hotel  and  with  whom  plaintiff  was  having  intercourse, 
which  was  discovered  by  the  defendant,  was  not  his  wife,  he 
would  have  had  the  right  under  the  statute  of  this  state,  to  have 
treated  them  both  as  being  unlawfully  upon  his  premises.  He 
Avould  have  had  the  right  to  terminate  the  relation  of  guest  and 
hotel  proprietor.  Under  such  circumstances,  if  that  had  been 
the  fact,  he  would  have  had  the  right  upon  notifying  them  to  de- 
part, upon  their  refusal  to  do  so,  to  have  treated  them  as  tres- 
passers, and  while  so  trespassing  on  his  property,  he  would  have 
been  justified  in  causing  their  arrest  for  criminal  trespass. 

But  it  turns  out  in  this  case  that  there  was  no  such  violation 
of  law  and  no  such  right  to  arrest.  The  jury  will  understand 
that  it  may  consider  these  things  mentioned  by  the  court  only 
as  reflecting  on  the  good  faith,  or  the  want  of  good  faith,  on  the 
part  of  the  defendant  in  anything  that  he  may  have  done  in 
this  case  having  to  do  with  the  making  of  the  arrest.  If  you  find 
that  there  was  reasonable  ground  of  suspicion,  as  before  stated, 
supported  by  sufficiently  strong  circumstances,  which  would  have 
warranted  the  defendant  in  causing  the  arrest  of  the  plaintiff, 
you  may  consider  such  fact  as  reflecting  upon  the  good  faith 
with  which  he  may  have  acted  in  the  matter,  whether  he  was 


1514  INSTRUCTIONS  TO  JURY. 

warranted  in  believing  under  the  circumstances  that  he  had  a 
right  to  cause  the  arrest  of  the  parties.  You  may  also  consider 
the  conduct  of  the  plaintiff  himself,  whether  he  did  what  a  rea- 
sonably prudent  guest  under  such  circumstances  would  ordinar- 
ily have  done  to  dispel  such  suspicion  and  to  disclose  that  he 
was  not  acting  immorally,  as  reflecting  upon  the  good  faith  of 
the  defendant.  The  jury  will  look  to  all  the  evidence,  facts  and 
circumstances  and  determine  the  good  faith  or  want  of  good 
faith  of  the  defendant,  and  decide  whether  he  acted  with  malice, 
or  whether  he  acted  prudently  and  in  good  faith. 

If  you  find  that  he  did  not  act  maliciously,  then  you  will  not 
assess  exemplary  damages  but  will  award  only  compensatory 
damages.  If  you  find  that  he  did  act  with  malice,  you  will 
assess  exemplary  damages  in  addition  to  compensatory  damages. 
The  object  and  purpose  of  exemplary  damages  is  to  assess  it 
rather  by  way  of  penalty,  to  set  an  example  to  mankind  in  gen- 
eral, to  teach  men  to  have  due  and  proper  regard  for  the  rights 
of  others  under  such  circumstances.  You  may  assess  as  part  of 
such  exemplary  damages  a  reasonable  attorney  fee  to  compen- 
sate his  counsel  whose  services  were  necessary  to  obtain  redress 
for  his  injury. 

The  law  in  this  state  permits  the  jury  in  the  assessment  of  ex- 
emplary or  punitive  damages  to  consider  the  standing  and  pe- 
cuniary ability  of  the  defendant  when  the  act  is  maliciously  done, 
not  otherwise.  The  law  permits  this  when  punishment  is  the 
object ;  not  necessarily  or  directly  to  enhance  the  amount  of  the 
damages  estimated  upon  what  he  may  be  able  to  pay,  but  instead 
to  enable  the  jury  to  determine  to  what  extent  plaintiff  was  in- 
jured by  the  wrongful  conduet  of  the  defendant.1 

1  Davenport  r.  Young,  Franklin  Co.  Com.  Pleas.  Kinkead,  J.     Authorities 

on  the  responsibility  of  innkeeper   in  ejecting  persons.     See  Holden 

v.   Carraher,    195  Mass.   302:    State   v.   Steele.   106   N.   C.   766.   8  L. 

R.   A.    516;    Hale   on    Bailments.   276:    Wieseneek   v.   Havlin,    1    O. 

N.    P.    (X.S.)    173;    16    Am.   &   Eng.    Enc,    526:    Com    v.   Mitchell. 

1   Phila.   63;    DeWolf   v.   Ford,    193   Mass.   35)7,  401. 
A  room  in  an  inn  occupied  by  a  guest  is  not  in  a  legal  sense  his  dwelling 

house.      DeWolf   v.   Ford,   193   Mass.    397,  401:    Rodgers    v.    People, 

86   N.   Y.   360. 


FALSE  IMPRISONMENT.  1515 

Sec.  1769.     False  imprisonment   where   fact   of  imprisonment 
and  discharge  conceded. 

1.  Statement  of  claims  of  parties. 

2.  Burdi  n  of  proof  on  plaintiff — Satisfied  by  fact  of  impris- 

onment and.  discharge. 

3.  Burden   on  defendant  to  prove  justification   that  arrest 

was  mad*   when  plaintiff  in  commission  of  misdemeanor. 
1.  When  arrest  may  be  made  for  misdemeanor. 

1.  Statement  of  claims  of  parties.     Plaintiff  seeks  to  recover 

from  the  defendants  in  this  case  the  sum  of  $ as  damages 

for  an  alleged  false  arrest  and  imprisonment. 

The  defendants  seek  to  justify  the  arrest  and  imprisonment' 
on  the  ground  that  plaintiff  was  guilty  of  disorderly  conduct, 
that  he  was  intoxicated  and  that  he  was  guilty  of  the  use  of 
profanity. 

2.  Burden  of  proof  on  plaintiff — Satisfied  by  fact  of  impris- 
onment and  discharge.  The  hurden  is  on  the  plaintiff  to  estah- 
lish  the  essential  element's  necessary  to  constitute  the  wrong  of 
false  imprisonment.  To  sustain  that  hurden  he  must  introduce 
such  evidence  as  will  show  a  preponderance,  or  a  greater  weight 
of  the  evidence  in  his  favor,  which  does  not  mean  a  greater  num- 
her  of  witnesses. 

When  the  fact  of  imprisonment  is  estahlished,  and  his  dis- 
charge without  punishment  is  likewise  estahlished,  the  plaintiff 
is  entitled  to  a  presumption  in  his  favor,  a  presumption  of  mixed 
law  and  fact,  that  such  imprisonment  was  unlawful  and  that 
it  is  sufficient  to  constitute  what  may  lie  termed  a  prima  facie 
case,  which  satisfies  the  hurden  of  proof  which  rests  upon  the 
plaintiff. 

2.  Burden  on  defendant  to  prove  justification  that  arrest  was 
inndi  whilt  plaintiff  in  commission  of  misdemeanor.  Now  the 
defendant  is  seeking  to  justify  the  arrest  and  imprisonment  on 
the  two  grounds  before  mentioned.  The  burden  then  is  upon 
him  to  show  by  a  propondervince  of  the  evidence  thai  the  plain- 
tiff was  engaged  in  the  commission  of  the  misdemeanors  or  one 


1516  INSTRUCTIONS  TO  JURY. 

of  them  alleged  in  his  answer.  The  burden  rests  upon  the 
defendant  to  show  that  the  plaintiff  was  guilty  of  disorderly 
conduct,  or  of  intoxication,  or  of  the  use  of  profanity. 

4.  When  an  arrest  may  be  made  for  misdemeanor.  An  arrest 
may  be  made  by  a  police  officer  for  a  misdemeanor, — that  is  an 
act  punishable  by  a  penalty  other  than  imprisonment  in  the 
penitenitary, — without  a  warrant  only  when  the  person  arrested 
is  actually  found  by  the  officer  at  the  time  of  his  arrest  in  the 
actual  commission  of  such  misdemeanor.  When  an  officer  arrests 
a  person  for  a  crime,  he  is  required  to  know  what  he  is  arrested 
for,  and  he  must  justify  his  arrest  by  facts,  circumstances  and 
conditions  and  what  was  said  and  done  at  the  time.  The  liberty 
of  men  must  not  be  interfered  with  unless  there  is  reasonable 
and  actual  ground,  in  fact,  in  the  case  of  misdemeanor,  at  the 
time  of  the  arrest.  There  is  no  uncertainty  about  it  at  all, 
because  the  law  requires  that  the  person  arrested  must  be  in  the 
actual  commission  of  the  misdemeanor  at  the  time,  otherwise 
he  has  no  right  to  make  the  arrest. 


CHAPTER   OIL 
FRAUD— FALSE  REPRESENTATIONS,  ETC. 


SEC. 

1770.  Fraud  not  presumed — Burden 

of  proving. 

1771.  Remedies    for    fraud — Rescis- 

sion  and  restoration. 

1772.  Fraud  defined. 

1773.  Proof  of  fraud. 

1774.  Contract  to  be  rescinded  and 

tender  made. 

1775.  Election     to     rescind      within 

reasonable  time  for  the 
jury. 

1776.  Representation  must    be    ma- 

terial. 

1777.  Misrepresentation  by  conceal- 

ment. 

1778.  False  representations  without 

knowledge  of  truth  or 
falsity. 

1779.  Ingredients       of       actionable 

fraud — Intent  to  deceive 
— Puffing  and  commenda- 
tion. 

1780.  Misrepresentation   to  existing 

or  past  fact. 

1781.  Fraudulent    promise    coupled 

with  present  intent  not 
to  fulfill. 

1782.  Fraudulent     promise    not    to 

engage  in  business. 

1783.  Representation  as  to  value. 

1784.  Jury  to  find  what  representa- 

tions wen*  made — Must 
be  relied  upon. 

1785.  Fraud    on    old    person — What 

constitutes — Proof. 
178G.   Fraudulent  purchase  of  goods 
— Essential    elements    ot 


fraud — Must  have  knowl- 
edge of  falsity — Stating 
what  is  believed  to  be 
true — Statement  without 
knowledge  of  truth — 
Must  intend  to  deceive — 
Must  be  material — Party 
must  be  misled  and  dam- 


1787.  Fraudulent  purchase  of  goods 

continued — Vendee  may 
abide  by  or  rescind  con- 
tract. 

1788.  Liability    of    corporation    for 

fraudulent  representa- 
tions of  agents. 

1789.  Fraudulent  purchase  of  goods 

— Principal  cannot  re- 
pudiate fraud  of  agent 
and  accept  benefit  of 
contract. 

1790.  Fraudulent  purchase  of  goods 

— Power  of  agent  to 
make  statements  as  to 
credit  and  financial  con- 
dition of  principal  in 
purchase   of   goods. 

1791.  Purchase   of  goods     with     in- 

tent not  to  pay  for  them 
Insolvency  of  purchaser 
conceded. 
17!' la.  Mercantile  agency — Liability 
for  false  reportB  as  to 
financial  standing. 

1792.  Transfer    of   property    by    one 

in  debt  without  consid- 
eration. 

1517 


1518 


INSTRUCTIONS  TO  JURY. 


SEC. 
1793. 


1794. 

1795. 
1796. 

1797. 

1798. 
1799. 

1800. 

1801. 


1802 


False  representation  in  sale 
of  horse  as  to  being 
vicious  —  Purchaser  in- 
jured while  driving — Ef- 
fect of  his  own  knowl- 
edge and  care. 

Same  continued  —  Vendor's 
knowledge  of  defects — 
Duty  to  give  notice. 

Same  continued — Measure  of 
damages. 

Representations  assumed  to 
be  within  one's  knowl- 
edge, but  truth  not 
known — Recklessly  made. 

Fraud  in  sale  of  land,  pre- 
venting examination  of 
land. 

Fraudulent  repiesentation  as 
to  location  of  city  lot. 

Whether  son  fraudulently 
persuades  parent  to  make 
beneficials  of  property  to 
him. 

Representations  as  to  value 
of  stock — Such  statement 
when  actionable  —  Mere 
opinions. 

Fraud  in  obtaining  insurance 
policy  alleged  by  defend- 
ant. 

1.  Claim  of  defendant  of  false 

answers      to      interroga- 
tories. 

2.  Statute  concerning  same. 

3.  Burden    on    him.    who    at- 

tacks      transaction       as 
fraudulent. 

4.  Same — Degree  of    evidence 

required  in  such  case. 

5.  Fraud — Its   definition   and 

elements. 
Measure  of  damages  when 
plaintiff  exchanges  land 
for  merchandise — Market 
value  of  land  not  consid- 
ered. 


1803.  False  representation  concern- 
ing merits,  working  and 
adaptability  of  patented 
machine  —  Claimed  b  y 
cross  petition. 

1.  Representation     and    war- 

ranty  distinguished. 

2.  Essentials  of  a  representa- 

tion. 

3.  Duty  of  purchaser    to    be 

reasonably  d  i  1  i  g  e  n  t — 
When  facts  peculiarly 
within  knowledge  of  oth- 
er party. 

4.  Existing    facts    distin- 

guished from  opinion  and 
dealer's  talk. 

5.  Matters  within  knowledge 

of  vendor  —  Purchaser 
without  knowledge,  and 
inspection  impossible 
without  great  expense. 

6.  When  operation  and  utility 

of  an  invention  matter  of 
opinion. 

7.  General    commendation 

open  to  difference  of 
opinion. 

8.  Direction    to    jury    to    ap- 

ply the  law  and  find  the 
facts. 

9.  Circumstances   may   estab- 

lish falsity. 
10.  Must  be  material  and  re- 
lied upon. 
1804.  Fraud  in  sale  of  stock  in  pro- 
posed company — Rather 
complete  charge,  embrac- 
ing:— 

1.  Burden  of  proof. 

2.  Degree     of      evidence      re- 

quired. 

3.  Proof  of   intent    and    pur- 

pose— Circumstantial  evi- 
dence. 

4.  Declarations  —  Considera- 

tions for  the  jury. 


FRAUD FALSE   REPRESENTATIONS,    ETC. 


1519 


5.  Failure   of   party   to   offer 

evidence  or  make  expla- 
nation naturally  to  be 
expected  of  him. 

6.  Failure  to  call  witness. 

7.  Jury     may     reason      from 

probabilities. 

8.  Failure  of  party  to  recol- 

lect important  facts. 

9.  Fraud      denned      and      ex- 

plained. 

10.  Materiality   of   representa- 

tion. 

11.  Promises — When      fraudu- 

lent— When  not. 

12.  Must  be  relied  upon. 

13.  Whether    written    contract 

or  previous  representa- 
tions relied  upon. 
1805.  Fraudulent  declaration  of  div- 
idends by  directors  of 
corporation  —  Action 
against  directors  of  cor- 
poration for  loss  by  pur- 
chaser of  stock. 


1.  Fraud— Burden  of  proving. 

2.  Intent     in     fraud — Wrong- 

ful conduct  supplies. 
:s.   Fraud  defined — Knowledge 
of  falsity,   actual  or   im- 
putable, essential. 

4.  Same — Jury   to    determine 

whether  statements  made 
knowingly   or   recklessly. 

5.  Same — Fraudulent      divi- 

dend— Duties  of  directors 
of  corporations — Care  re- 
quired. 

6.  Same — Directors  voting  or 

assenting  to  declaration 
of  dividend  liable  when — 
The  statute  making  divi- 
dend unlawful  when. 

7.  Same — Liability    of    direc- 

tors for  acts  of  manager 
of  corporation. 

8.  Same  —  Misrepresentation 

to  be  fraudulent  must  be 
material  and  relied  upon. 

9.  Same — Measure     of     dam- 

ages. 


Sec.  1770.     Fraud  not  presumed — Burden  of  proving. 

The  court  instructs  the  jury  that  fraud  is  never  presumed, 
but  must  be  proved  by  a  preponderance  of  the  evidence;  the 
presumption  of  law  is  that  the  business  transactions  of  every 
man  are  done  in  good  faith  and  for  an  honest  purpose;  anyone 
who  alleges  that  such  acts  are  done  in  bad  faith,  or  for  a  dis- 
honest  purpose  takes  upon  himself  the  burden  of  showing,  by 
specific  acts  and  circumstances  tending  to  prove  fraud,  that  such 
acts  were  done  in  bad  faith.  The  defendant  is  entitled  to  the 
benefit  of  this  presumption  in  the  consideration  of  this  case  until 
the  jury  find  from  the  evidence  that  such  presumption  has  been 
overcome.1 

i  Fraud  may  be  presumed  to  the  extent  that  the  law  presumes  to  intend 
the  natural  results  of  his  acta.  Jameson  v.  McNally,  21  O.  S.  205. 
304.     Never  presumed.     Lake  v.  Doud,   10  O.   415,  420;    Bohart   i\ 


1520  INSTRUCTIONS  TO  JURY. 

Atkinson,  14  0.  228,  239;  Landis  v.  Kelly,  27  O.  S.  567,  569;  Cooley 
on  Torts,  556.  As  to  distinction  between  fraud  in  fact  and  fraud 
in  law,  see  Thompson  on  Trials,  sees.  1930,  et  seq.  Situations  in 
which  law  presumes  fraud.  Id.,  sec.  1936.  What  is  called  fraud 
in  fact,  is  always  a  question  of  fact  for  the  jury.  Id.,  sees.  1940. 
1945. 

Sec.  1771.    Remedies  for  fraud — Rescission  and  restoration. 

Fraud  is  never  presumed  by  law,  but  must  be  proven.     But 

where  there  has  been  such  a  fraud  committed,  as  is  charged  in 

the  petition,  the  law  gives  the  defrauded  party  two  remedies. 

He  may,  at  his  option,  rescind  the  whole  transaction  and  demand 

that  the  parties  be  restored  to  their  original   relations,  or  he 

may  keep  the  property  he  has  received  and  sue  for  the  difference 

between  its  real  value  and  that  amount  which  he  has  paid  for 

it.     He  has  adopted,  in  this  case,  the  latter  course,  and  he  enters 

suit  for  that  difference  from  what  he  says  was  the  real  value 

of  the  property.1 

i  Wright,  J.,  in  Randolph  v.  Ammon,  51  O.  S.  585.  The  vendor  may  on 
discovery  rescind  the  sale  and  sue  for  the  value  of  the  property. 
Thurston  v.  Blanchard,  22  Pick.  18;  33  Am.  Dec.  700;  Moody  v. 
Blake,  117  Mass.  23;  19  Am.  Rep.  394;  or  afBrm  the  bargain  and 
sue  and  recover  damages  for  the  fraud.  Cooley  on  Torts,  589, 
and  cases.  He  must  restore  goods  or  consideration.  Curtiss  v. 
Howell,  39  N.  Y.  215;  Guckenheimer  v.  Angewine,  81  N.  Y.  394; 
Bartlett  v.  Drake,  100  Mass.  176;  97  Am.  Dec.  92.  As  to  remedy 
for  fraud  and  deceit,  see  fully  Kinkead's  Code  Pleading,  sec.   606. 

Sec.  1772.    Fraud  denned. 

Fraud  consists  in  deception  practiced  in  order  to  induce 
another  to  part  with  property  or  surrender  some  legal  right, 
and  which  accomplishes  the  end  designed.  Fraudulent  repre- 
sentations are  those  proceeding  from  or  characterized  by  fraud. 
Their  purpose  is  to  deceive.  A  fraudulent  representation  in 
law  is  one  that  is  either  knowingly  untrue,  or  made  without 
belief  in  the  truth,  or  recklessly  made  and  for  the  purpose  of 
inducing  action  upon  it.1 

i  Sallies  v.  Johnson,  85  Conn.  77,  81  Atl.  974,  Am.  Ann.  Cas.,  1913  A., 
386;   Cooley,  Torts,  p.  474. 


FRAUD FALSE   REPRESENTATIONS,    ETC.  1521 

Sec.  1773.    Proof  of  fraud. 

You  are  instructed  that  fraud  is  never  presumed,  but  is  to  be 
proved  like  other  facts,  and  the  degree  of  evidence  is  like  that 
prevailing  in  ordinary  civil  actions,  and  need  not  be  proved 
beyond  a  reasonable  doubt,1  but  only  by  a  preponderance  of 
the  evidence.2  It  may  be  established  by  direct  and  positive 
evidence,  and  may  also  be  proved  by  circumstantial  evidence 
as  well  as  positive  proof;3  circumstances  may  be  proven  by 
competent  evidence  from  which  the  inference  of  fraud  which 
is  alleged  will  naturally  arise,  and  the  jury  will  be  justified  in 
considering  the  fraud  as  proven  by  such  inferences.  The  act  or 
commission  of  fraud  is  so  much  different  from  the  ordinary 
run  of  facts,  that  it  is  more  difficult  of  proof ;  it  is  about  as 
difficult  sometimes  to  prove  fraud  as  it  would  be  to  prove  a 
criminal  act,  because  the  guilty  party  so  frequently  covers  up 
and  conceals  his  acts.  If  the  circumstances  which  are  proved 
by  a  preponderance  or  greater  weight  of  evidence  are  such  as 
to  convince  the  jury  that  the  fraud  charged  has  been  committed, 
they  may  so  find.4 

i  Eames  r.  Morgan,  37  111.  260-2;   Strader  v.  Mullane,  17  0.  S.  624. 

2  la. 

"  Strauss  v.  Kranert,  56  111.  254. 

<  Jones  v.  Greaves.  26  0.  S.  2;  Lake  v.  Doud.  10  O.  415;  Wilson  v.  Del- 
arask,  3  0.  290;  Cooley  on  Torts,  475  (2  ed.  p.  556).  "Fraud  is 
properly  made  out  by  marshaling  the  circumstances  surrounding  the 
transaction,  and  deducting  therefrom  the  fraudulent  purpose,  when 
it  manifestly  appears,  as  by  presenting  the  more  positive  and  direct 
testimony  of  actual  purpose  to  deceive;  and  indeed  circumstantial 
proof  in  most  cases  can  alone  bring  the  fraud  to  light,  for  fraud 
is  peculiarly  a  wrong  of  secrecy  and  circumvention,  and  is  to  be 
traced  not  in  the  open  proclamation  of  the  wrongdoer's  purpose,  hut 
by  the  indications  of  covered  tracks  and  studious  concealments." 
{Id. )  It  need  not  be  shown  "conclusively."  Sparks  v.  Dawson, 
47  Tex.  138.  "The  proof  need  not  be  positive,  but  must  from  the 
nature  of  things  be  circumstantial."  YVhittaker's  Code  of  Ev.  417. 
502.  The  Court  in  Pritchard  <.  Hopkins,  52  Iowa,  120,  charged 
that — "The  defendant  must  establish  the  existence  of  fraud  by  a 
preponderance  of  the  testimony  before  you  can  find  for  the  defend- 
ant." 


1522  INSTRUCTIONS  TO  JURY. 

Sec.  1774.     Contract  to  be  rescinded  and  tender  made, 

If  the  plaintiff  recovers,  it  is  on  the  ground  that  the  contract 
is  set  aside  for  fraud ;  but  when  a  party  wants  to  have  that 
done,  and  to  have  his  money  returned,  he  must  also  return  what 
he  received  from  the  other  party  for  his  money.  In  order  for 
the  plaintiff  to  recover  in  this  case,  even  if  he  has  made  out  the 
fraud  he  claims,  it  was  incumbent  on  him  to  return  or  tender 
back  to  the  company  the  certificate  of  stock  he  had  received. 
If  he  did  not  do  this,  he  can  not  recover,  and  to  make  such  a 
tender  sufficient  it  was  necessary  to  produce  the  certificate  and 
offer  it  to  the  representative  of  the  company,  unless  the  produc- 
tion and  offer  of  it  was  waived  by  such  representative. 

The  jury  is  instructed  that  if  at  Mr.  G.  's  office,  H.  was  present 
as  the  representative  of  the  defendant,  and  Mr.  G.,  as  the  attor- 
ney of  the  plaintiff,  told  H.  the  reasons  why  M.  desired  the 
cancellation  of  his  stock,  and  demanded  that  the  company  take 
back  the  stock  and  return  M.  his  money,  and  if  Mr.  G.  had  the 
certificate  of  stock  there  ready  and  willing  to  return  it,  but  was 
deterred  from  making  an  actual  tender  of  the  certificate,  be- 
cause H.  denied  the  reasons  and  refused  to  take  back  the  stock 
or  entertain  the  proposition,  then  it  was  not  necessary  for  the 
plaintiff  to  make  such  actual  tender  of  the  certificate  by  form- 
ally producing  it  and  tendering  it  to  H.1 

i  From   The  Cleveland   Crucible  Steel  Co.  v.  Murdock    ( S.   C. ) ,   Cuyahoga 
County. 

Sec.  1775.    Election  to  rescind  within  a  reasonable  time  for 
the  jury. 

A  person  complaining  of  fraud  or  misrepresentation  is  re- 
quired to  take  steps  to  rescind  the  transaction  within  a  reason- 
able time.  Whether  the  plaintiff  elected  to  rescind  within  a 
reasonable  lime  after  discovery  of  the  fraud  is  a  question  to  be 
decided  by  the  jury.1 
i  Marple  v.  Railway,  115  Minn.  262,  132  N.  W.  333;  Am.  Ann.  Cas.  1912  D. 


FRAUD FALSE   REPRESENTATIONS,    ETC.  1523 

Sec.  1776.    Representation  must  be  material. 

"In  the  first  place,  it  is  obvious  that  the  fraud  must  be  ma- 
terial to  the  contract  or  transaction  which  is  to  be  avoided 
because  of  it;  for  if  it  relates  to  another  matter,  or  to  this  only 
in  a  trivial  and  unimportant  way,  it  affords  no  ground  for  the 
action  of  the  court.  It  must  therefore  relate  distinctly  and 
directly  to  this  contract,  and  it  must  affect  its  very  essence  and 
substance.  But,  as  before,  we  must  say  that  there  is  no  positive 
standard  by  which  to  determine  whether  the  fraud  be  thus 
material  or  not.  Nor  can  we  give  a  better  rule  for  deciding  the 
question  than  this :  if  the  fraud  be  such  that  had  it  not  been 
practiced  the  contract  would  not  have  been  made,  or  the  trans- 
action completed,  then  it  is  material  to  it ;  but  if  it  be  shown 
or  made  probable  that  the  same  thing  would  have  been  done 
by  the  parties  in  the  same  way  if  the  fraud  had  not  been  prac- 
ticed it  can  not  be  deemed  material.  "Whether  the  fraud  be 
material  or  otherwise  seems  to  be,  on  the  decided  weight  of 
authority,  a  question  for  the  jury  and  not  a  question  of  law ; 
but  it  is  obvious  that  in  many  cases  the  jury  can  not  answer 
this  question  without  instructions  from  the  court."1 

i  Hamilton.  J.,  in  The  Cleveland  Rolling  Mill  Co.  v.  Joseph,  rt  al.,  S.  C. 
o.  2913,  Cuyahoga  County.  Quoted  from  2  Parsons  on  Contracts, 
p.  769  (5th.  Ed.).  Must  he  material,  Ins,  Co.  v.  Reed,  .33  0.  S. 
283;  Connersville  v.  Wadleigh,  41  Am.  Dec.  214.  It  must  be  a  rep- 
resentation giving  occasion  to  the  contract,  Adams  v.  SehifTer,  11 
Col.  15,  7  Am.  St.  R.  202;  Pulsford  v.  Richards,  17  Beav.  96.  See 
Cooley  on  Torts,  580.  They  need  not  form  the  sole  inducement; 
it  is  enough  that  they  have  formed  a  material  inducement, 
Mathews  v.  Bliss,  22  Pick.  48;  Safl'ord  v.  Crout,  120  Mass.  20; 
Fishback    v.  Miller,   1.1  Xev.  428;   Cooley,  Torts  :>S7. 

Sec.  1777.     Misrepresentation  by  concealment. 

It  is  not  necessary  that  false  representations  be  by  express 
words,  but  they  may  be  by  mere  concealmenl  of  material  Pacts 
under  such  circumstances  as  make  it  the  duty  of  the  party  to 
speak.  Suppression  of  the  truth  where  there  is  a  duty  to  speak 
is  as  much  a  legal  wrong  as  a  positive  falsehood,  and  is  action- 


1524  INSTRUCTIONS  TO  JURY. 

able.     If,  however,  there  is  no  duty  to  disclose,  failure  to  tell 
the  truth  is  not  actionable  fraud.1 

i  Jaggard  on  Torts,  575-77.  Words  not  necessary,  Cooley  on  Torts,  558, 
565. 

Sec.  1778.     False  representations  without  knowledge  of  truth 
or  falsity. 

"Although  you  may  find  from  the  evidence  that  defendant 
did  not  know  that  said  representations  were  untrue,  yet,  if  you 
believe  from  the  evidence  that,  pending  the  negotiations  for  the 
purchase  of  said  land,  and  for  the  purpose  of  effecting  the  trade 
and  inducing  said  agent  to  make  it,  defendant  made  said  repre- 
sentations as  of  his  own  knowledge  (and  they  were  untrue),  but 
did  not  know  whether  they  were  true  or  false,  and  knew  or  had 
reason  to  believe  that  said  agent  relied  on  said  representations 
as  true,  and  said  agent  did  so  rely  on  them,  and  was  thereby 
deceived  and  induced  to  trade  for  or  purchase  said  land,  you 
will  find  for  the  plaintiff."1 

i  Caldwell  v.  Henry,  76  Mo.  254,  256. 

"If  the  party  (defendant)  made  the  representations  not  knowing  whether 
it  was  true  or  false,  he  can  not  be  considered  as  innocent;  since 
a  positive  assertion  of  a  fact  is,  by  plain  implication,  an  assertion 
of  knowledge  concerning  the  fact.  Hence,  if  a  party  (if  the  de- 
fendant) have  no  knowledge,  he  has  asserted  for  true  what  he 
knew  to  be  false."  Insurance  Co.  v.  Reed.  33  O.  S.  294:  Bigelow 
on  Fraud,  61;  Stone  v.  Covell,  29  Mich.  359,  and  cases  cited; 
Woodfulf,  27  Ind.  4;  Fisher  v.  Mellen,  103  Mass.  503;  Taylor  v. 
Ashton,  11  M  &  W.  400;  Nugent  v.  R.  R.  Co.,  2  Disn.  302;  5  Law- 
son's  R.  &  R.,  sec.  2352,  and  cases;  Jaggard  on  Torts,  p.  565  (2d 
ed.  p.  582). 

Sec.  1779.     Ingredients  of  actionable  fraud — Intent  to  deceive 

— Puffing    and    commendation — Complainant 

must  be  misled. 

"First.     Telling  a  bare,  naked  lie  is  not  actionable  in  and 

of  itself.     One  of  the  ingredients  of  an  actionable  fraud  is,  that 

the  falsehood  must  be  asserted  with  the  intention  that  another 

shall  believe  it  true  and  act  upon  it;    and  such  intention  is 


FRAUD — FALSE  REPRESENTATIONS,  ETC.         1525 

fraudulent,  whether  the  person  asserting  the  falsehood  knew 
that  it  was  false,  or  recklessly  stated  it  to  be  true,  not  knowing 
whether  it  was  true  of  false."1 

' "  Second.  The  party  asserting  the  falsehood  must,  at  the 
time,  intend  to  deceive.  Fraud  usually  consists  in  intention." 
"•Third.  The  falsehood  must  be  not  only  in  something  ma- 
terial, but  it  must  be  in  something  in  regard  to  which  the  one 
party  places  a  known  trust  and  confidence  in  the  other.  For 
if  the  falsehood  be  of  such  a  nature  that  the  party  deceived 
by  it  had  no  right  to  place  reliance  upon  it,  and  it  was  his  own 
folly,  in  consequence  of  his  not  exercising  common  sense  and 
ordinary  discretion  and  sagacity,  he  can  not  maintain  an  action 
for  the  injury.  Thus  where  a  party,  upon  making  a  purchase 
for  himself  and  his  partners,  falsely  stated  to  the  seller,  to 
induce  him  to  make  the  sale,  that  his  partners  would  not  give 
more  for  the  property  than  a  certain  price,  whereas,  in  truth, 
they  expected  and  intended  to  give  more,  it  was  held  that  it  was 
the  seller's  own  discretion  to  rely  upon  such  false  assertions. 
The  common  language  of  puffing  and  commendation  of  articles, 
in  relation  to  such  things  as  are  equally  open  to  the  observation, 
examination  and  skill  of  both  parties,  and  upon  which  it  is 
understood  that  every  buyer  exercises  his  own  judgment,  comes 
within  the  rule  above  laid  down ;  inasmuch  as  no  one  is  supposed 
to  be  deceived  by  such  false  assertions.  A  confidential  relation 
must  exist  between  the  parties."  "Fourth.  The  false  state- 
ment must  be  made  to,  or  it  must  have  been  intended  to  operate 
upon,  the  party  complaining."  "Fifth.  The  party  complain- 
ing of  the  deceit  must  be  misled  by  the  falsehood  ;  for  if  he 
knows  the  assertion  to  be  false  when  made  it  can  not  be  said 
to  influence  his  conduct."  "Sixth.  The  falsehood  must  con- 
stitute an  inducement  or  motive  to  the  act  or  omission  of  the 
party  deceived."  "Seventh.  The  party  deceived  must  be  mis- 
led to  his  injury;  a  damage  must  result  from  the  party  deceived 
acting  on  the  faith  of  the  falsehood.  *  *  *  Tn  general,  whim 
the  promisee  is  induced,  by  false  and  fraudulent  representation, 
to  enter  into  a  contract  that  manifestly  would  not  have  been 


1526  INSTRUCTIONS  TO  JURY. 

made,  except  on  the  faith  that  such  false  representations  were 
true,  and  being  false,  affected  substantially  his  rights,  he  may- 
repudiate  such  contract."2 

i  33  0.  S.  283. 

2  Hamilton,  J.,  in  Cleveland  Rolling  Mill  Co.  v.  Joseph,  Cuyahoga  Co. 

Sec.  1780.    Misrepresentation  to  existing  or  past  fact. 

The  general  rule  of  law  is  that  the  misrepresentation,  to  be 

actionable,  must  relate  to  an  existing  or  a  past  fact.1 

i  Sallies  v.  Johnson,  85  Conn.   77,  81   Atl.  974;    Am.  Ann.  Cas.   1913   A., 
3S6;  Matthews  v.  Ely,  149  Mo.  App.  157. 

Sec.  1781.    Fraudulent  promise  coupled  with  present  intent 
not  to  fulfil. 

A  promise  to  do  an  act  in  the  future  which  is  the  medium  of 
a  deception,  and  which  the  promisor  has  no  present  intention 
to  perform  constitutes  actionable  fraud.1  The  intention  to  de- 
ceive is  a  condition  of  mind,  and,  when  it  exists,  is  as  much  of  a 
fact  as  any  other  fact.  That  it  is  more  difficult  to  prove  does 
not  change  its  inherent  character.  So  a  man's  intention  in 
doing  an  act  is  a  fact  admissible  in  any  action  which  it  helps 
to  explain,  to  be  proved  by  his  words  or  inferred  from  his  con- 
duct.2 A  misstatement  of  a  man's  mind  is  therefore  a  mis- 
statement of  fact,  The  existence  of  the  intent  not  to  perform 
the  promise  at  the  time  of  its  making  constitutes  the  fraud.3 

i  Ayres  v.  French,  41  Conn.  142;  Barnes  r.  Starr,  64  Conn.  136. 

2  Spencer's  Appeal,   71   Conn.   638;    Dunham   v.   Cox,   81    Conn.   268. 

s  Sallies  v.  Johnson.  85  Conn.  77,  81  Atl.  974;  Am.  Ann.  Cas.  1913  A., 
386;  Edgington  v.  Fitzmaurice.  29  Ch.  D.  (Eng.)  459,  483;  Ayres 
v.  French,  41  Conn.  142;  Blackhurn  v.  Morrison,  29  Okla.  510,  118 
Pac.  402;  Am.  Ann.  Cas.  1913  A.,  523. 

Sec.  1782.    Fraudulent  promise  not  to  engage  in  business. 

A  false  representation  by  the  seller  of  a  business,  that  he  was 
about  to  and  would  abandon  such  business  in  a  city  where  if 
had  been  conducted,  made  to  a  purchaser  with  the  intent  of 


FRAUD FALSE   REPRESENTATIONS,    ETC.  1527 

deceiving  him,  is  not  a  mere  promise  to  do  an  act  in  the  future, 
but  has  relation  to  an  existing  fact, — the  immediate  withdrawal 
of  the  seller  from  such  business,  and  if  coupled  with  an  existing 
intent  not  to  do  so  is  fraudulent.1 

i  Sallies  ,.  Johnson,  85  Conn.  77.  81  Atl.  074:  Am.  Ann.  Cas.  1013,  A.  3S6; 
Blackburn  v.  Morrison,  29  Okla.  510,  118  Pac.  402;  Am.  Ann.  Cas. 
1913,  A.  523. 

Sec.  1783.     Representation  as  to  value. 

A  representation  concerning  value  is  ordinarily  to  be  treated 
as  a  mere  matter  of  opinion  and  as  such  not  fraudulent  and 
actionable.  But  it  may  be  otherwise.  If  it  is  made  as  an 
assertion  of  fact,  and  with  the  purpose  that  it  shall  be  so  re- 
ceived, and  it  is  so  received,  it  may  amount  to  a  fraud.  A 
statement  of  value  may  be  of  such  character,  may  be  so  made 
and  intended  and  so  received,  as  to  constitute  a  misrepresenta- 
tion.1 

i  Crompton  v.  Beedle,  83  Vt.  287,  75  Atl.  331; Am.  Ann.  Cas.  1912,  A.  399; 
Hetland  v.  Bilstad,  140  Iowa,  411. 

Sec.  1784.    Jury  to  find  what  representations  were  made — Must 
be  relied  upon. 

To  entitle  the  plaintiff  to  recover  in  this  case,  she  must  prove 
that  the  defendant  made  representations  to  her,  and  to  the 
father ;  that  she  and  the  father  relied  upon  them ;  that  whether, 
under  the  circumstances  existing  at  the  time,  she  had  a  right 
to  rely  upon  those  made  to  her.  She  must  further  prove  such 
misrepresentations  were  false  when  made,  and  known  to  be  so 
when  made.  She  must  further  prove  she  was  damaged,  and 
pecuniarily  injured  thereby.  Tf  she  proves  these  things,  she 
will  be  entitled  to  recover;  otherwise  she  will  not.  Look  in1" 
the  evidence  then  and  determine — first,  what  representation-; 
he  did  in  faet  make.  What  representations  to  herself,  and  what 
to  her  father,  either  verbally  or  iu  writing,  or  in  both.  Tf  none 
were  made,  that  would  end  the  case.     Hut,  if  any  were  mad*1 


1528  INSTRUCTIONS  TO  JURY. 

you  must  determine  from  the  evidence  what  they  were.  It  is 
not  necessary  you  should  find  that  he  made  each  and  all  of  the 
representations  set  forth  in  the  petition,  exactly  as  set  forth 
therein,  but  it  will  be  sufficient  if  you  find  he  made  substantially 
these  representations. 

(a)   Must  have  right  to  rely  on  them. 

If  you  find  he  made  substantially  such  representations  as 
alleged,  you  will  then  inquire  whether  she  relied  upon  them. 
And  if  you  find  she  did,  you  will  then  inquire  whether,  under 
the  circumstances  then  existing,  she  had  a  right  to  rely  on  them  ;x 

and  here  I  will  say  to  you,  if  you  find  she  had  resided  in 

at  the  time,  and  he  and  the  father  resided  here,  and  correspond- 
ence was  opened  between  them,  and  he  wrote  to  her  in  a  brotherly 
spirit,  and  intimated  a  disposition  to  protect  her  interests  in  the 
premises,  then  she  had  a  right  to  rely  on  them.  If  you  find  she 
had  no  right  to  rely  on  the  representations,  she  then  would  have 
no  right  to  recover.  But  if  you  find  she  had  a  right  to  rely  on 
them,  you  will  inquire,  were  the  representations  so  made,  false, 
and  if  they  were  not,  she  can  not  recover,  because  she  couldn't 
recover  for  fraudulent  representations.  If  the  representations 
were  true,  if  they  were  not  false,  she  can  not  recover.  If  they 
were  false,  you  will  then  inquire,  were  she  and  the  father  de- 
ceived by  them.  If  they  were  not,  she  can  not  recover.  But 
if  they  were,  and  you  so  find,  you  will  inquire,  was  she  damaged 
then,  or  did  she  suffer  pecuniary  injury  from  these  representa- 
tions. If  not,  she  can  not  recover.  But  if  she  did,  and  you  so 
determine,  she  would  be  entitled  to  recover  damages  for  such 
injuries  as  she  has  shown  by  the  evidence,  she  has  sustained 
thereby.2 

1  See  Cooley  on  Torts,  577. 

-  Nicholas,  J.,  in  Albright  v.  Thompson,  27  W.  L.  B.  247.  Judgment  af- 
firmed. 

There  is  no  liability  if  buyer  relied  on  his  own  knowledge.  Wilkinson  v. 
Root,  W.  686.  A  representation  of  what  will  or  will  not  be  per- 
mitted to  be  done,  is  one  on  which  the  party  to  whom  it  is  made 
has  no  right  to  rely;  and  if  he  does  so  rely,  it  is  his  folly,  and 
he  can  not  ask  the  law  to  relieve  him  from  the  consequences.     The 


FRAUD FALSE   REPRESENTATIONS,    ETC.  1529 

truth  or   falsehood  of  such  a  representation  can   be  tested  by  ordi- 
nary  vigilance   and   attention.     It   is   an   opinion   in   regard  to  the 
law.   and    is   always   understood   as   such.     Fish    r.   Cleland,   33    III. 
243,  33  O.  S.  293. 
Representations  must   have  been  acted   upon.     Cooley   on   Torts.   r>87. 

Sec.  1735.     Fraud  on  old  person — What  constitutes — Proof. 

It  is  claimed  that  the  fraudulent  means  used  were  practiced 
in  part  upon  the  plaintiff  and  in  part  upon  the  father,  who,  by 
reason  of  his  great  age  and  enfeebled  condition  of  body  and 
mind  at  the  time,  was  unable  to  protect  himself  against  the 
alleged  fraud  and  fraudulent  practices  of  the  defendant,  as 
alleged  in  the  petition.  On  this  subject  the  jury  is  instructed 
that  fraud,  though  it  is  not  presumed  in  such  a  case  as  this,  but 
must  be  proven,  yet  it  may  be  proven  either  by  direct  or  circum- 
stantial evidence;  that  is,  by  the  proof  of  certain  collateral 
facts,  from  which  the  existence  of  fraud  may  or  should  be 
inferred.  It  may  be  drawn  from  collateral  facts  which  are 
proven  in  the  case.  One  of  the  curious  things  about  fraud  is 
it  can  not  be  defined,'  it  has  so  many  and  varied  shapes  that  no 
single  definition  can  cover  them  all;  and  it  is  well  that  it  is  so, 
because,  if  it  had  a  legal  definition,  evil  disposed  persons  would 
suit  that  definition  and  go  perpetrating  fraud,  and  would  also 
ascertain  the  means  to  escape  the  consequences.  Fraud,  although 
it  is  not  presumed,  yet  it  may  be  inferred  from  collateral  facts 
which  are  proven,  and  it  may  be  then  but  an  inference  from 
these  collateral  facts.1 

We  might  go  further  and  say :  To  constitute  a  cause  of  action 
for  fraudulent  representations,  there  must  be  bad  faith.  If  the 
representations  when  made  were  believed  to  be  true,  and  the 
facts  of  the  case  were  such  as  to  justify  the  belief,  there  is  no 
fraud  or  deceit,  and  there  can  be  no  recovery.2 

A  representation  is  false  and  will  furnish  ground  for  recov- 
ery whether  the  party  knew  it  to  be  false  or  not,  if  he  had  no 
reason  to  believe  it  to  be  true  when  made,  and  it  was  done  with 
the  intention  of  inducing  the  person  to  whom  made  to  act  upon 


1530  INSTRUCTIONS  TO  JURY. 

it,  and  the  latter  does  so  and  sustains  damage,  there  may  be  a 

recovery.3 

i  Nicholas,   J.,    in    Albright    v.    Thompson,    27    W.    L.    B.    247.     Judgment 
affirmed.     See  cases   ante,  No.   198. 

2  Taylor  v.  Leith,  26  O.  S.  428. 

3  Aetna  Ins.  Co.  v.  Reed,  33  0.  S.  283. 

Sec.  1786.    Fraudulent  purchase  of  goods — Essential  elements 
of  fraud— Must  have  knowledge  of  falsity- 
Stating  what  is  believed  to  be  true — State- 
ment without  knowledge  of  truth — Must  in- 
tend to   deceive — Must   be   material — Party 
must  be  misled  and  damaged. 
A  falsehood,  to  amount  to  a  legal  fraud,  must  be  accompanied 
by  the  following  circumstances :   First.     The  party  asserting  the 
falsehood  must  know  at  the  time  he  makes  the  assertion  that 
it  is  a  falsehood.     Hence,  when  a  person  asserts  a  thing  which 
he  believes  to  be  true,  but  which  in  fact  is  false,  he  is  not  liable 
therefor  by  the  reason  of  the  fact  that  if  is  false,  though  another 
may  be  injured  and  deceived  thereby,  though  if  he  state  that 
to  be  true  about  which  he  has  no  knowledge  and  no  reason  to 
believe  is  true,  and  it  is  false  in  fact,  then  we  may  well  question 
his  belief  in  its  truth,  and  it  may  be  equivalent  to  stating  that 
which  he  knows  to  be  false.     Second.     The  party  asserting  the 
falsehood  must  at  the  time  intend  to   deceive.      Third.      The 
falsehood  must  be  not  only  in  something  material,  but  it  must 
be  in  something  in  regard  to  which  one  party  places  a  known 
trust  and  confidence  in  the  other.     Fourth.  The  false  statement 
must  be  made  to  or  it  must  have  been  intended  to  operate  upon 
the  party  complaining.     Fifth.  The  party  complaining  of  the 
deceit  must  have   been   misled   by   the   falsehood.     Sixth.  The 
falsehood  must  constitute  an  inducement  or  motive  to  the  act 
of  the  party  deceived.     Seventh.     The  party  deceived  must  be 
misled  to  his  injury.     A  damage  must  result  from  the  party 
deceived  acting  on  the  faith  of  the  falsehood.1 

iWilmot  v.  Lyon,  49  0.  S.  296.     "The  charge  given  was  a  correct  state- 
ment of  the  law  applicable  to  the  case  and   is  approved."     Id. 


FRAUD FALSE    REPRESENTATION'S,    ETC.  1531 

Sec.  1787.    Fraudulent  purchase  of  goods,  continued — Vendor 
may  abide  by  or  rescind  contract. 

The  principal  question,  then,  which  will  claim  your  attention 
is,  was  the  purchase  of  the  goods  in  controversy  in  this  action 
fraudulent?  If  it  was,  then  these  plaintiffs  had  the  right,  on 
the  discovery  of  the  fraud,  either  to  abide  by  the  contract  of 
sale  or  to  treat  the  contract  as  wholly  void  and  of  no  effect — 
that  is.  as  if  it  had  never  been  made,  so  far  as  the  parties  thereto 
and  this  defendant  are  concerned — provided  they  acted  promptly 
upon  the  discovery  of  the  fraud ;  and  in  the  latter  case,  on 
election  by  them  so  to  do,  plaintiffs  had  the  right  to  avoid  the 
contract  and  pursue  and  take  or  replevin  their  goods.  If  they 
have  done  this  and  there  wras  fraud  in  the  sale,  then  they  are 
entitled  to  your  verdict.  But  if  there  was  no  fraud  in  this  sale, 
then  the  company  was  the  sole  and  complete  owner  of  these 
goods  on  the  completion  of  the  sale,  without  the  power  of  revoca- 
tion on  the  part  of  these  plaintiffs,  and  the  defendant  is  entitled 
to  your  verdict.1 
1  YVilmot  r.  Lyon,  40  O.  S.  296,  where  charge  was  approved. 

Sec.  1788.     Liability  of  corporation  for  fraudulent  represen- 
tations of  agents. 

A  corporation  necessarily  acts  through  its  agents  and  is  as 
much,  and  no  more,  bound  by  the  false  and  fraudulent  repre- 
sentations of  its  authorized  agents  as  an  individual;  and  both 
are  bound  by  the  authorized  acts  of  his  or  its  agents.  If  the 
directors  of  a  company,  acting  as  a  body  in  the  course  of  man- 
aging its  affairs,  or  in  the  course  of  business  which  it  is  their 
duty  to  transact,  induce  a  man,  by  false  and  fraudulent  repre- 
sentations, to  enter  into  a  contract  for  the  benefit  of  the  com- 
pany, the  company  is  bound.  But  a  company  or  corporation 
is  not  bound  by  the  statement  of  one  of  it's  stockholders,  or  of 
one  of  its  directors  or  officers,  unless  he  ;ilso  was  an  agent  of  the 
corporation  and  authorized  to  make  statements  in  its  behalf.1 

i  Wilmot  v.  Lyon,  40  O.  R.  206,  approving  the  charge. 


1532  INSTRUCTIONS  TO  JURY. 

Sec.  1789.  Fraudulent  purchase  of  goods — Principal  can  not 
repudiate  fraud  of  agent  and  accept  benefit 
of  contract. 

But  no  man  can  adopt  and  take  the  benefit  of  a  contract  en- 
tered into  by  his  agent,  and  repudiate  the  fraud  on  which  the 
contract  was  based.  If  the  agent  at  the  time  of  the  contract 
makes  any  representation  touching  the  subject  matter,  it  is 
the  representation  of  his  principal.  The  principal  can  not 
separate  the  contract  itself  from  that  by  which  it  was  induced ; 
he  must  adopt  the  whole  contract,  including  the  statements  or 
representations  which  induced  it,  o**  must  repudiate  the  contract 
altogether.1 
i  Wilmot  v.  Lyon,  49  0.  S.  296.     Charge  approved. 

Sec  1790.  Fraudulent  purchase  of  goods — Power  of  agent  to 
make  statements  as  to  credit  and  financial 
condition  of  principal  in  purchase  of  goods. 

If  the  principal  sends  his  agent  into  the  market  to  buy  goods 
for  him  on  the  principal's  credit,  I  think  the  agent  may,  at  least 
in  the  absence  of  instructions,  be  fairly  held  to  be  authorized 
to  make  statements  as  to  the  credit  and  financial  condition  of 
his  principal.  True,  he  would  not  in  such  case  be  authorized 
to  make  any  but  truthful  statements.  Yet,  being  authorized 
to  represent  his  principal's  credit  and  financial  standing,  if 
he  does  make  false  and  fraudulent  statements  as  to  material 
facts  to  the  seller,  and  thereby  induces  a  person  who  right- 
fully relies  upon  them  to  part  with  his  goods  by  a  sale  to  the 
principal,  that  principal  can  not  honestly  or  legally  retain  the 
goods  thus  obtained  by  fraud  from  the  seller,  if  the  seller,  on 
discovery  of  the  fraud,  promptly  repudiates  the  contract  of 
sale  and  demands  a  return  of  the  goods,  the  seller  at  the  same 
time  returning  or  offering  to  return  anything  which  he  may 
have  received  in  exchange  therefor.1 
i  Wilmot  v.  Lyon,  49  O.  S.  296.     Charge  approved. 


FRAUD FALSE    REPRESENTATIONS,    ETC.  1533 

Sec  1791.    Purchase  of  goods  with  intent  not  to  pay  for  them 
— Insolvency  of  purchaser  concealed. 

A  contract  for  the  purchase  of  goods  on  credit,  made  with 
intent  on  the  part  of  the  purchaser  not  to  pay  for  them  is  fraud- 
ulent; and  if  the  purchaser  has  no  reasonable  expectation  of 
being  able  to  pay,  it  is  equivalent  to  an  intention  not  to  pay. 
But  where  the  purchaser  intends  to  pay,  and  has  reasonable 
expectations  of  being  able  to  do  so,  the  contract  is  not  fraudu- 
lent, although  the  purchaser  knows  himself  to  be  insolvent,  and 
does  not  disclose  it  to  the  vendor  who  is  ignorant  of  the  fact. 

If,  when  the  agreement  of  purchase  was  made,  there  was  a 
fraudulent  concealment,  within  the  definition  already  given,  on 
the  part  of  the  company  of  their  insolvency,  knowing  themselves 
to  be  insolvent,  it  would  still  be  fraudulent.  When  a  party  thus 
enters  into  negotiations  for  the  purchase  of  goods,  and  offers  to 
buy  or  is  content  to  buy  upon  application,  and  gives  his  promise 
to  pay,  in  my  judgment,  whether  he  says  anything  about  it  or 
not,  it  is  understood  by  both  parties  that  he  has  a  reasonable 
expectation  of  being  able  to  pay — whether  he  says  so  in  words 
or  not. 

Whether,  therefore,  a  contract  of  purchase,  where  the  pur- 
chaser fails  to  disclose  his  own  insolvency  is  fraudulent  or  not 
depends  on  the  intention  of  the  purchaser;  and  whether  that 
intention  was  to  pay  or  not  to  pay  is  a  question  of  fact  and  not 
a  question  of  law.  Being  a  question  of  fact,  it  is  for  the  jury 
to  solve  from  the  evidence  in  the  case. 

In  the  solution  of  this  question,  though  it  be  one  of  fact,  it 
is  true,  however,  that  certain  presumptions  arise  which  are 
entitled  to  consideration  and  force.  Thus  fraud  must  be  proved 
and  is  not  to  be  presumed — but  is  to  be  proved  like  any  other  fact, 
still  positive  and  direct  proof  or  evidence  is  not  always  required 
or  possible,  but  the  proof  may  be  gathered  from  all  the  circum- 
stances in  the  case.  While  it  may  be  that  fraud  must  be  proved 
and  will  not  be  presumed,  still  there  is  a  presumption  that  every 
reasonable  person  anticipates  and  intends  tin-  ordinary  and  prob- 
able consequences  of  known  causes  and  conditions.     Hence,  if 


1534  INSTRUCTIONS  TO  JURY. 

a  purchaser  of  goods  has  knowledge  of  his  own  insolvency,  and 
of  his  inability  to  pay  for  them,  his  intention  not  to  pay  may 
be  preferred  if  the  jury  believe  and  find  that  the  evidence  suf- 
ficiently warrants  such  inference.  It  may  conclude,  if  it  deems 
proper,  that  an  insolvent  purchaser,  who  is  without  reasonable 
expectations  of  ability  to  pay,  should  be  presumed  to  intend  not 
to  pay.  Indeed,  an  intention  not  to  pay  may  be  inferred  from 
the  mere  fact  that  the  purchaser  had  undisclosed  knowledge  of 
his  gross  insolvency;  but,  in  such  case,  the  inference  may  be 
rebutted  by  other  facts  and  circumstances. 

It  is  claimed  that  in  good  morals  a  purchaser  knowing  himself 
to  be  insolvent  should  not  accept  credit  from  one  ignorant  of 
the  fact.  Whether  this  proposition  be  true  or  not,  it  is  enough 
to  say  that  the  law,  in  its  practical  morality,  does  not  afford  a 
remedy  for  the  violation  of  every  moral  duty.  While,  there- 
fore, a  purchaser  of  goods  by  an  insolvent  vendee  who  conceals 
his  insolvency  with  intent  to  injure  the  vendor  is  fraudulent 
and  voidable,  yet  a  purchase  under  like  circumstances,  save  only 
that  such  intent  is  absent,  is  not  in  law  fraudulent. 

The  simple  failure  to  disclose  the  fact  (of  insolvency),  how- 
ever, is  not  equivalent  to  its  concealment.  The  latter  implies 
a  purpose — a  design;  the  former  does  not.  If,  then,  such 
knowledge  on  the  part  of  the  purchaser  be  necessary  to  make 
out  a  fraud,  it  is  because  it  becomes  the  predicate  of  an  intent 
— and  intent  to  injure. 

Now,  gentlemen,  what  do  you  say  upon  all  the  facts  of  this 
case?  Was  this  company  insolvent  at  the  time  of  this  pur- 
chase? Did  they  know  it,  and  did  they  conceal?  Having  no 
reasonable  expectation  that  they  would  be  able  to  pay  for  the 
goods,  did  they  conceal  the  fact  of  that  insolvency?  If  they 
did,  then  I  say  to  you,  whether  they  said  anything  at  the  time 
or  not,  did  any  other  act  of  concealment  or  artifice  or  not,  the 
simple  concealment  of  those  facts,  that  they  were  insolvent  and 
that  they  did  not  intend  to  pay,  is  enough  to  make  an  action- 
able case,  and  to  vitiate  and  avoid  the  sale.  If  they  had  an 
honest  belief  in  their  solvency,  an  honest  belief  that  they  could 


FRAUD FALSE  REPRESENTATIONS,  ETC.         1535 

turn  these  goods  and  pay  for  them,  and  expected  to  do  it.  then, 
whether  insolvent  or  not,  the  sale  was  not  a  void  one.1 

i  As  given  by  Hamilton,  J.,  in  Wilmot  v.  Lyon,  49  O.  S.  296,  and  founded 
on  Taleott  c.  Henderson,  31  O.  S.  162.  The  charge  has  been  modi- 
fied in  some  respects  so  as  not  to  appear  to  be  too  much  of  a 
specific  direction  to  the  jury,  and  may  be  still  further  varied 
according  to  the  wish  of  any  one  using  the  form.  The  charge  was 
attacked,  but  was  held  to  be  a  correct  statement  of  the  law 
applicable  to  the  case.  As  to  propf  of  intent  see  Oswego  Starch 
Factory  v.  Landrum,  27  Iowa,  573.  A  man  intends  the  natural 
results  of  his  acts.  Arnold  v.  Maynard,  2  Story,  353.  For  cases 
holding  contrary  to  the  charge,  but  which  were  considered  by  the 
Supreme  Court  both  in  the  Taleott  and  Wilmot  cases  and  not  fol- 
lowed, see  Nichols  v.  Penner,  18  N.  Y.  295-300;  Lupin  r.  Marie, 
6  Wend.  77:  Conyers  v.  Ennis,  2  Mass.  236;  Mitchell  v.  Worden, 
20  Barb.  253;  Smith  v.  Smith,  Murphy  &  Co.,  21  Penn.  367;  Hen- 
nequin  v.  Naylor,  24  N.  Y.  139;  Bidault  v.  Wales,  20  Mo.  546; 
Powell  v.  Bradlee,  9  Gill  and  John,  220-276. 

Sec.  1791a.    Mercantile  agency — Liability  for  false  reports  as 
to  financial  standing. 

The  jury  is  instructed  that  if  the  statement  given  to  the 

agency  was  substantially  true,  as  claimed  by  defendants,  and 
it  was  the  sole  representation  which  came  to  the  plaintiffs,  and 
that  only  through  the  agency,  then,  in  so  far  as  the  plaintiff's' 
claim  depends  upon  alleged  fraudulent  oral  or  written  re  pre- 
sentations, no  recovery  can  be  had  by  plaintiffs.  But  if  you  find 
the  statement  was  made  to  the  agency,  and  that  it  was  false  in 
whole  or  in  part,  then  inquire  whether  it  was  given  with  the 
intent  of  the  part  of  the  company  to  have  it  used  as  a  continu- 
ing representation  among  the  patrons  of  the  agency  for  the 
purpose  of  obtaining  credit  for  the  company  by  showing  its 
financial  standing  until  it  should  be  otherwise  changed  or  modi- 
fied by  the  company.  And  to  determine  this,  look  to  the  char- 
acter of  the  statements  themselves  ;  sec  whether  the  facts  detailed 
were  liable  to  change  by  lapse  of  time,  or  were  they  of  a  perma- 
nent nature?  What  was  the  custom  and  usage  <>f  the  agency 
in  treating  them  as  continuing  or  otherwise?  And  what  knowl- 
edge of  such  custom  had  the  company?     What  other  reports. 


1536  INSTRUCTIONS  TO  JURY. 

if  any,  did  the  company  make  to  the  agency  covering  the  facts 

of  the  original  statements  of ?     And  if  you  shall  find  it 

was  not  intended  or  designed  to  be  a  continuing  statement,  then, 
whether  true  or  false,  it  was  too  remote  in  point  of  time  to 
authorize  plaintiffs  or  anyone  else,  nearly  four  years  after,  to 
rely  upon  its  statements,  and  can  not  be  the  foundation  of 
recovery  in  this  case.  But  if  you  find  it  was  intended  and 
designed  by  the  company  as  a  continuing  representation,  and 
was  in  fact  so  used,  to  the  knowledge  of  the  company,  then  apply 
to  it  the  rules  of  law  already  given,  and  the  facts  as  you  shall 
find  them  to  be,  and  determine  whether  the  representations 
therein  contained  were  so  used  as  to  render  this  sale  fraudulent. 

Sec.  1792.     Transfer  of  property  by  one  in  debt  without  con- 
sideration. 

You  are  instructed  that  if  a  person  who  is  in  debt  transfers 
his  property  to  another,  without  consideration,  or  good  and 
valuable  consideration,  without  retaining  sufficient  property  to 
pay  his  debts,  such  transfer  would  be  fraudulent  as  against  the 
creditors  of  the  person  so  transferring  said  property.  But  you 
are  instructed  that  when  a  person  is  in  debt  and  his  property 
is  encumbered  by  mortgages  or  other  liens,  he  has  the  right  to 
borrow  money  and  give  security  on  any  or  all  of  his  property  to 
secure  the  payment  of  the  money  so  borrowed,  providing  such 
transaction  is  a  bona  fide  transaction  and  done  in  good  faith.1 
i  Nye,  J.,  in  Beebe  v.  Ensign,  Lorain  Co.  Com.  Pleas. 

Sec.  1793.  False  representation  in  sale  of  horse  as  to  being 
vicious — Purchaser  injured  while  driving — 
Effect  of  his  own  knowledge  and  care. 

Action  for  damages  resulting  from  fraudulent  representations 
in  purchase  of  pair  of  carriage  horses,  which  are  claimed  to  be 
vicious  and  unmanageable,  and  dangerous  to  drive. 

If  the  jury  finds  from  the  evidence  that  the  alleged  injuries 
of  the  plaintiff  were  caused  by  the  wrongful  acts  of  the  defend- 


FRAUD FALSE    REPRESENTATIONS,    ETC.  1537 

ant  set  out  in  the  petition,  whereby  the  plaintiff  sustained  his 
injuries,  he  is  entitled  to  recover.  If  you  find  that  the  plain- 
tiff's case  is  not  made  out  by  the  evidence,  your  verdict  should 
be  for  the  defendant;  or  if  you  find  that  the  injuries  to  the 
plaintiff  complained  of  would  not  have  occurred  but  for  the 
negligence  or  mismanagement  of  the  plaintiff  at  the  time  the 
injuries  occurred,  or  if  you  find  from  the  evidence  that  he  had 
knowledge  of  the  vicious  and  ungovernable  character  of  the 
horses,  and,  notwithstanding  that  knowledge,  negligently  and 
unreasonably  exposed  himself  to  the  hazards  by  which  he  was 
injured,  by  driving  them  when  he  ought  to  have  known  that  it 
was  dangerous  and  imprudent  to  do  so,  then  he  would  be  treated 
in  law  as  having  taken  upon  himself  risks  arising  therefrom, 
and  can  not  recover  for  the  alleged  injuries  to  his  person,  vehicle, 
or  harness.  For  the  law  requires  of  the  complaining  party  that 
he  should  act  with  reasonable  care  and  prudence  under  the 
circumstances  in  regard  to  hazards  known  to  him,  or  that  rea- 
sonably ought  to  be  known  to  him,  and  if  he  acts  otherwise 
voluntarily,  he  can  not  charge  the  consequences  of  his  folly  to 
another.  The  rule  of  law  is  that  when  one  voluntarily  encount- 
ers a  known  hazard,  he  takes  upon  himself  the  risks  resulting 
therefrom.  So,  we  say  to  you,  if  but  for  his  folly,  the  injuries 
complained  of  would  not  have  happened,  he  can  not  recover. 
It  is  a  rule  of  law  as  well  as  a  sound  conclusion  of  common  sense 
and  justice,  that  a  person  can  not  hold  another  for  the  conse- 
quences of  his  own  folly. 

Perhaps  the  rule  would  be  better  stated  as  follows:  The 
plaintiff  can  not  recover  any  compensation  for  any  damages 
which  he  might  reasonably  have  avoided  by  the  use  of  ordinary 
care  and  prudence  under  the  circumstances.  So,  if  he  volun- 
tarily exposed  himself  to  hazards  he  ought  not  to  have  encoun- 
tered under  the  circumstances,  which  were  known  to  him,  and 
he  thereby  received  injuries,  he  can  not  recover  therefor. 

So,  if  his  injuries  were  the  result  of  mere  accident,  he  can  not 
recover  therefor.  But  in  the  absence  of  knowledge  to  the  con- 
trary, if  the  plaintiff  acted  in  good  faith,  he  would  be  entitled 


1538  INSTRUCTIONS  TO  JURY. 

to  believe  that  the  defendant  made  truthful  representations  to 
him  respecting  the  horses  so  sold  to  him,  and  in  using  them  in 
a  reasonable  and  prudent  manner  he  would  not  be  exposed  to 
the  hazards  of  using  vicious  and  ungovernable  horses."1 
i  Voris,  J.,  in  Sampsell  v.  Thurman,  Lorain  Co.  Com.  Pleas. 

Sec.  1794.    Same,  continued — Vendor's  knowledge  of  defects 
— Duty  to  give  notice. 

It  is  a  general  rule  that  whenever  a  vendor  has,  or  reasonably 
ought  to  have  had  notice  of  the  defects  in  the  horses  calculated 
to  do  serious  harm,  of  which  the  vendee  has  no  notice,  and  neg- 
lects to  notify  the  vendee,  he  becomes  liable  to  him  for  damages 
produced  by  such  neglect. 

The  fact  that  the  plaintiff  gave  no  notice  to  the  defendant  of 
the  first  runaway,  if  you  so  find  the  fact  to  be,  or  of  any  other 
fact,  on  the  same  coming  to  his  knowledge,  if  any,  respecting 
the  alleged  vicious  and  ungovernable  character  of  the  horses, 
may  be  considered  by  you  in  determining  whether  he  in  good 
faith  relied  upon  the  representations  of  the  defendant  (after 
the  first  runaway)  or  took  upon  himself  voluntarily  the  risks 
of  continuing  to  drive  them  afterwards. 

But  the  court  says  to  you  that  the  failure  to  give  such  notice 
of  itself  does  not  deprive  the  plaintiff  of  the  right  to  recover. 

"If  you  should  find  from  the  preponderance  of  the  evidence 
that  the  defendants  made  the  representations  set  out  in  the 
petition  to  induce  the  plaintiff  to  purchase  the  horses,  that, 
by  reason  thereof  and  relying  upon  them,  the  plaintiff,  not 
knowing  anything  to  the  contrary,  purchased  the  horses,  and 
you  further  find  that  the  horses  were  unsound  and  vicious, 
restive,  ungovernable,  or  worthless  in  harness  when  purchased, 
and  that  the  plaintiff  sustained  damages  thereby,  then  you  should 
find  for  the  plaintiff,  though  you  should  find  that  the  defendant 
did  not  know  the  vicious  character  of  the  horses  and  did  not 
intend  to  deceive  and  defraud  the  plaintiff."1 
i  Voris,  J.,  in  Sampsell  v.  Thurman,  Lorain  Co.  Com.  Pleas. 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1539 

Sec.  1795.     Same,  continued — —easure  of  damages. 

The  plaintiff  can  not  recover  for  defects  in  the  horses  other 
than  those  alleged  in  the  petition.  But  it  will  be  sufficient  if 
you  find  that  some  of  them  existed  which  constituted  a  breach  of 
the  contract  and  caused  the  injuries  complained  of.  In  winch 
case,  and  should  you  further  find  that  the  defendants  did  not 
know  the  vicious  character  of  the  horses,  and  did  not  intend 
to  deceive  the  plaintiff,  but  acted  in  good  faith  in  making  the 
representations,  then  the  measure  of  damages  would  be  tin- 
difference  between  the  actual  value  of  the  horses  when  sold  and 
what  the  value  would  have  been  had  they  been  as  represented 
to  be  by  the  defendant,  to  which  difference  you  may  add  interest 
from  the  day  of  the  sale  to  the  first  day  of  this  term,  the  sum 
of  which  difference  and  interest  will  constitute  the  amount  of 
your  verdict. 

But  if  you  should  find  that  the  defendants  made  said  repre- 
sentations not  in  good  faith,  but  with  intent  to  deceive  and 
defraud  the  plaintiff,  you  may  add  to  said  sum  so  as  aforesaid 
found  such  further  sum  as,  in  your  judgment,  guided  by  the 
evidence  and  these  instructions,  as  will  compensate  the  plaintiff 
for  the  injuries  caused  by  the  wrongful  acts  of  the  defendants 
as  herein  defined  and  limited.  This  may  include  compensation 
for  impaired  health,  mental  anguish,  physical  suffering,  expenses 
incurred  for  surgical  attendance  and  nursing,  bodily  injury, 
loss  of  time,  considering  either  constant  or  probable  duration, 
its  effect  upon  his  health  and  physical  powers,  his  incapacity 
for  labor,  the  pursuit  of  his  profession,  or  other  business,  as 
you  find  the  facts  to  he,  upon  the  evidence. 

As  a  guide,  you  are  instructed  that  the  legal  damages  that 
follow  the  wrongs  complained  of  are  only  such  as  according  to 
common  experience  and  the  usual  course  of  events  might  be 
reasonably  anticipated  (23  Ohio  St..  032).  Tf  in  such  injury 
to  his  property  that  you  may  find  from  the  evidence  was  caused 
or  sustained  by  reason  of  want  of  exercise  of  reasonable  care  or 
prudence  on  the  part  of  the  plaintiff,  and  which  be  would  have 


1540  INSTRUCTIONS  TO  JUR\  . 

avoided  had  he   conducted  himself  with   reasonable   care   and 
prudence,  he  can  not  recover.1 

J  Voris,  J.,  in  Sampsell  v.  Thurman,  Lorain  Co.  Com.  Pleas. 

Sec.  1796.     Representations  assumed  to  be  within  one's  knowl- 
edge, but  truth  not  known — Recklessly  made. 

Whether  in  this  case  the  defendants  made  the  representations 
alleged,  and  whether  they  were  false,  and,  if  they  did  make 
them,  whether  they  were  made  for  the  fraudulent  purpose 
alleged,  are  questions  exclusively  for  your  determination  from 
the  evidence  submitted  to  you ;  and  in  determining  these,  you 
are  admonished  that  fraud  is  not  to  be  presumed  by  you,  except 
as  established  by  the  evidence. 

Material  representations  made  by  a  vendor  of  matters  assumed 
by  him  to  be  within  his  personal  knowledge  are  false  and  fraud- 
ulent in  a  legal  sense  if  made  with  the  intent  to  deceive  the  pur 
chaser,  if  they  are  untrue  and  are  relied  upon  by  the  vendee 
in  making  the  purchase,  and  he  is  damaged  thereby,  although 
the  seller  did  not  know  them  to  be  untrue;  or  if  he  recklessly 
makes  a  false  representation  of  truth  of  a  matter  of  which  he 
knows  nothing,  for  the  fraudulent  purpose  of  inducing  the 
purchaser  to  enter  into  a  contract,  and  the  purchaser  enters  into 
it  relying  upon  the  same,  the  vendor  is  as  much  liable  as  if  he 
knew  the  statement  to  be  false  at  the  time  he  made  it'.1 
i  Voris.  J.,  in  Sampsell  v.  Thurman,  Lorain  Co.  Com.  Pleas. 

Sec.  1797.     Fraud  in  sale  of  land — Preventing  examination  of 
land. 

"If  the  jury  believe  from  the  evidence  in  the  cause  that  plain- 
tiff, at  or  before  the  sale  of  the  land  in  question  to  the  defendant, 
knowing  said  land  to  be  subject  to  overflow,  used  any  artifice 
to  mislead  the  mind  of  the  defendant  and  throw  him  off  his 
guard,  and  to  prevent  him  from  making  as  careful  examination 
of  the  land  in  question  as  a  man  of  ordinary  prudence  would 
otherwise  have  made;  and  that  defendant  was  thereby  misled 
and  thrown  off  his  guard,  and  prevented  from  examining  said 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1541 

land,  and  in  consequence  thereof,  was  and  remained  ignorant  of 
the  fact  that  said  land  was  subject  to  overflow  up  to  the  time 
when  he  bought  said  land,  then,  in  that  case,  the  jury  should 
find  for  the  defendant  and  assess  his  damages  according  to  the 
measure  heretofore  stated  by  the  court."1 
i  McFarland  r.  Carver,  34  Mo.  195,  196. 

Sec.  1798.  Fraudulent  representations  as  to  location  of  city  lot. 
"If  you  believe  from  the  evidence  that,  at  the  time  plaintiff 
purchased  said  lot,  the  defendant  knew  that  it  was  intended 
as  a  residence  lot ;  and  if  you  further  believe  that  he  then  and 
there  told  said  defendant  where  and  on  what  part  of  said  lot 
he  wished  to  build  his  house,  and  what  the  style  of  such  house 
should  be,  and  in  what  direction  it  should  front;  and  if  you 
believe  that  said  defendant  then  and  there,  as  an  inducement 
to  plaintiff  to  purchase  said  lot  for  a  residence,  represented  to 
him  that  there  was  a  street  on  the  east  and  on  the  north  side 
of  him ;    and  if  you  believe  that  by  said  representations  plaintiff 

was  induced  to  purchase  said  lot  for  the  sum  of  $ for  the 

purpose  aforesaid,  and  that  such  purposes  were  known  to  the 
defendant;  if  you  believe  that  plaintiff  then  and  there  made 
said  purchase,  and  proceeded  to  build  and  did  build  a  residence 
in  the  northeast  corner  of  said  lot,  fronting  east  and  north,  and 
that  such  design  was  communicated  to  the  defendant  at  and 
before  said  sale ;  and  you  further  believe  that  said  representa- 
tions of  defendant,  made  about  a  street  on  the  north  were  false, 
and  known  to  the  defendant  at  the  time  they  were  made  to  be 
false  ;  and  if  you  believe  that  plaintiff  has  been  damaged  thereby, 
then  you  will  allow  him  for  the  same."1 
i  White  v.  Smith,  54  Ta.  233,  236,  237. 

Sec.  1799.  Whether  son  fraudulently  persuades  parent  to 
make  beneficial  dispositions  of  property  to 
him. 

This  defendant  had  a  right  to  importune  and  persuade  the 
father  to  make  such  disposition  as  would  be  most  beneficial  to 


1542  INSTRUCTIONS  TO  JURY. 

him,  but  in  such  importunity  and  persuasion,  he  must  be  careful 
not  to  make  use  of  any  unfair  means,  must  make  no  false  repre- 
sentations of  the  facts  to  the  father,  nor  perpetrate  any  other 
kind  of  fraud  to  induce  him  to  make  such  disposition  in  his 
favor.  If  the  father  did  dispose  of  his  property  upon  mere 
incessant  importunity  and  persuasion,  unmixed  with  fraud,  in 
a  manner  that  might  benefit  the  defendant,  as  the  result  of  such 
incessant  persuasion,  the  transaction  wouldn't  be  fraudulent  on 
that  account,  couldn't  be  impeached  for  fraud.  If  in  the  use 
of  such  importunity  and  persuasion,  he  resorts  to  unfair  means, 
or  false  representations  of  the  facts,  or  other  fraudulent  means, 
he  can  not  be  permitted  to  enjoy  the  fruits  of  his  wrong-doing 
or  the  advantage  obtained  by  such  means.  In  your  search  for 
the  truth  in  the  case  you  must  weigh  all  the  evidence  before  you.1 

i  Nicholas,   J.,    in    Albright    v.    Thompson,    27    W.    L.    P».    247.     Judgment 
affirmed. 

Sec.  1800.     Representations  as  to  value  of  stock — Such  state- 
ment when  actionable — Mere  opinions. 

It  must  be  shown  by  a  preponderance  of  evidence  that  there 
was  some  actual  assertion  made  by  the  defendants  that  the  stock 
of  goods  was  of  a  certain  value,  and  that  the  plaintiff  relied 
upon  the  same,  and  that  the  statements  were  untrue,  and  that 
plaintiff  was  thereby  misled  to  his  injury. 

The  statement  or  assertion  that  is  relied  upon  must  be  posi- 
tive; not  a  mere  assertion  or  opinion,  but  must  be  intended  to 
have  the  effect  of  influencing  the  mind  of  the  other  party,. 

(a)   Mere  opinions. 

It  must  not  be  a  mere  expression  of  opinion  on  the  matter, 
or  guesswork,  and  not  intended  to  influence  the  mind  of  the 
other  party,  but  it  must  be  a  positive  statement  that  does  have 
influence  on  the  mind  of  the  party  to  whom  it  is  made.1 

There  is  no  particular  form  of  words  necessary;  no  partic- 
ular expression  is  necessary  to  make  such  a  statement  as  is 
referred  to,  but  any  distinct  assertion  of  the  value  of  this  stock, 
or  any  direct  assertion  to  lead  the  plaintiff  to  believe  it  was  of 
such  value  will  be  sufficient ;   and  the  statement  must  have  been 


FRAUD FALSE    REPRESENTATIONS,    ETC.  1543 

made  so  as  to  have  induced  the  plaintiff  to  purchase ;  and,  if 
that  is  so,  and  the  plaintiff  was  thereby  induced  to  purchase, 
it  is  immaterial  at  what  stage  of  the  negotiations  it  was  made, 
if  previous  to  the  conclusion  of  the  contract  between  the  parties. 
If  representations  of  value  were  not  made  until  after  the  sale 
was  consummated,  of  course  it  would  not  have  been  an  induce- 
ment, and  can  not  be  considered  in  the  case.  It  must  have  been 
made  before  the  sale  was  consummated  fully.  It  is  necessary 
also  for  the  plaintiff  to  show  that  he  relied  on  this  statement 
of  the  defendant  in  the  case ;  for,  if  he  made  the  purchase  not 
relying  on  these  representations,  but  relying  upon  his  own  judg- 
ment, or  that  of  outside  parties,  then  he  can  not  be  said  to  have 
been  misled  by  the  defendants'  misrepresentations. 

*     *     *     If  you  find  from  the  evidence  that  the  defendants 

simply  priced  their  stock  at  $ ,  without  misrepresentation 

of  the  same,  and  its  value,  you  will  be  justified  in  finding  for 
the  defendants,  because  a  man  has  the  right  to  sell  his  property 
for  all  he  can  get  for  it,  providing  he  makes  no  false  representa- 
tions. He  has  the  right  to  remain  vsilent  in  such  eases.  But 
there  are  cases  in  which  silence  is  as  much  falsehood  as  speech, 
but  I  need  not  undertake  to  define  them  to  you.  But  where  a 
party  has  the  right  to  remain  silent  and  does  not  mislead  the 
other  party,  and  allows  the  one  with  whom  he  is  trading  to  act 
on  his  own  judgment,  he  is  not  bound  to  lay  before  the  other 
party  all  the  facts  about  the  matter,  and  advise  him  about  all 
the  minute  details,  but  he  is  bound  not  to  deceive  him.2 

>  Representation  of  more  opinion  not  actionable,  5  Lawson's  R.  &  R., 
sec.  2345;  Drake  v.  Latham,  50  Til.  270;  Jaggard  on  Torts,  577; 
Cooley  on  Torts,  565. 

2  Calvin  D.  Wright,  J.,  in  Randolph  r.  Amnion,  51  0.  S.  585.  The  case 
was  reversed  by  the  Circuit  Court  by  sustaining  a  demurrer  to  the 
petition,  and  this  was  modified  by  the  Supremo  Court,  and  sent 
back    for   new   (rial,   which   rule  would    md    affect   the  charge. 

Sec.  1801.     Fraud   in   obtaining  insurance   policy  alleged   by 
defendant. 

1.  Claim  of  defendant  <>f  false  answers  i<>  interrogatories. 

2.  The  statute  concerning  same. 


1544  INSTRUCTIONS  TO  JURY. 

3.  Burden  on  him  who  attacks  a  transaction  as  fraudulent 

— Honesty  and  truthful  answers  required  of  applicant. 

4.  Same — Degree  of  evidence  required  in  such  case. 

5.  Credibility  of  ivitnesses.     See  sec. . 

6.  Fraud — Its  definition  and  elements. 

1.  Claim  of  defendant  of  false  answers  to  interrogatories. 
Defendant  says  that  it  was  induced  to  make  and  deliver  the 
policy  of  insurance  by  reason  of  the  fraudulent  concealment 
and  misrepresentation  of  W.,  same  being  material  to  the  risk, 
and  not  known  to  the  defendant  at  the  time  of  the  issuance  of 
the  policy;  that  the  policy  would  not  have  been  issued  had  it 
not  been  for  the  false  and  fraudulent  representation.  The  fraud 
and  misrepresentation  claimed  and  alleged  by  defendant  's 
denied  by  the  plaintiff.  The  issue  is  therefore  clearly  drawn 
as  to  the  truth  of  the  claim  of  fraud. 

Under  the  issues  in  this  case  the  question  for  the  jury  to 
decide  is  whether  the  deceased,  W.,  made  an  answer  to  any 
interrogatory  as  an  applicant  for  insurance  in  his  application 
which  was  wilfully  false  or  fraudulently  made ;  whether  such 
answer,  if  it  was  wilfully  and  fraudulently  made,  was  material ; 
whether  it  induced  the  company  to  issue  the  policy;  whether 
the  defendant  compan}'  would  not  have  issued  the  policy  on 
which  this  action  is  brought  if  the  alleged  wilfully  false  and 
fraudulent  answer  had  not  been  made,  if  it  was  made. 

2.  The  statute  concerning  same.  The  statute  of  this  state 
provides  that:  "No  answer  to  any  interrogatory  made  by  an 
applicant  in  his  or  her  application  for  a.  policy  shall  bar  the 
right  to  recover  upon  any  policy  issued  therein,  or  be  used  in 
evidence  upon  any  trial  to  recover  upon  said  policy  unless  it 
be  clearly  proved  that  such  answer  is  wilfully  false,  was  fraud- 
ulently made,  that  it  is  material,  and  induced  the  company  to 
issue  the  policy,  and  that  but  for  such  answer  the  policy  would 
not  have  been  issued,  and  also,  that  the  agent  or  company  had 
no  knowledge  of  the  falsity  or  fraud  of  such  answer." 

3.  Burden  on  him  who  attacks  transaction  as  fraudulent.  It 
is  presumed  that  every  business  transaction  of  every  man  is  in 
good  faith,  and  for  an  honest  purpose.     Therefore  and  for  that 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1545 

reason,  and  because  of  that  presumption  it  is  incumbent  on  one 
who  alleges  that  an  act  done,  or  a  statement  made  is  in  bad 
faith  and  made  for  a  dishonest  purpose,  to  prove  that  the  same 
was  made  in  bad  faith  by  either  facts  or  circumstances  from 
which  the  jury  may  infer  and  conclude  that  it  was  made  in  bad 
faith,  and  hence  that  it  was  fraudulently  made. 

A  contract  of  insurance,  like  any  other  business  transaction, 
is  one  which  eminently  requires  good  faith,  honesty  and  integ- 
rity of  the  statements  on  the  part  of  the  applicant  for  insur- 
ance. Such  good  faith,  honesty  and  truthful  answers  by  the 
insured  lies  at  the  foundation  of  the  contract  of  insurance, 
imposing  upon  him  the  duty  and  obligation  of  making  truthful 
answers  to  questions  which  are  calculated  to  bring  knowledge 
to  the  insurance  company  as  to  the  physical  condition  of  the 
applicant  which  would  enable  it  to  determine  whether  the  appli- 
cant will  make  a  suitable  risk  for  it  to  issue  a  policy  of  insurance 
upon. 

It  is  the  duty  of  an  applicant,  and  it  was  the  duty  of  the 
insured  in  this  case,  not  to  conceal  the  fact  that  he  was  treated 
by  a  physician,  or  that  he  consulted  a  physician,  if  he  did  so 
conceal  these  facts  and  you  so  find  under  the  evidence.  It  is 
his  duty  to  disclose  to  the  company  the  last  time  or  times  he 
consulted  a  physician,  truthfully  and  honestly,  and  it  is  his 
duty  to  disclose  what  disease,  if  he  knows,  he  was  suffering  from 
and  he  did  so  consult  a  physician. 

Because  the  law  presumes  in  the  absence  of  proof  to  the  con- 
trary, that  the  contracts  of  men  are  honestly  made  and  in  good 
faith,  the  burden  is  cast  upon  the  one  attacking  the  good  faith 
of  such  a  transaction  to  prove  it.  And  the  burden  is  upon  the 
defendant  in  this  case  to  prove  the  falsity  of  the  answer  in  ques- 
tion ;  that  it  was  material ;  that  defendant  relied  upon  it  and 
was  induced  to  issue  the  policy  because  thereof.1 

4.  Flame — Degree  of  evidence  required  in  such  case — Clear  evi- 
dence.   In  ordinary  civil  eases  the  degree  of  evidence  of  a  party 


i  Wood   v.  John   Hancock  Life  Insurance  Co.,   Franklin   Cora.   Pleas,  Kin- 
kead,  J. 


1546  INSTRUCTIONS   TO  JURY. 

upon  whom  the  burden  of  proof  rests  is  to  establish  the  facts 
averred  and  claimed  by  him  by  a  preponderance  of  evidence. 
This   means   the   greater    weight    of    evidence,    considering    the 
weight  and  credit.     Absolute  certainty  net  being  always  possible 
or  required,  the  law  under  such  degree  of  evidence  permits  the 
jury  to  consider   probabilities,   to   conclude   whether   from   the 
evidence  the  fact  or  facts  is  or  are  probably  true.     The  statute 
applicable  to  this  case  requires  the  defendant  company  to  clearly 
prove  that   such   answer  was   wilfully   false   and  fraudulently 
made;    that  it  was  material  and  relied  upon.     The  requirement 
that  the  fraud  shall  be  clearly  proved  is  imposed  by  law  because 
the  good  faith  of  the  insured  in  making  the  contract  is  chal- 
lenged.    There  is  a  distinction  between  a  probability  and  clear 
proof.     Probability  is  that  which  appears  probable;    anything 
that  has  the  appearance  of  reality  or  truth.     Clearly  proving 
a  fact  is  to  prove  it  in  a  clear  manner.     For  a  fact  to  be  clearly 
proved  is  that  it  may  be  proved  so  that  the  jury  is  able  to  see 
or  perceive  clearly  or  distinctly  the  fact  alleged  and  in  dispute. 
So  the  burden  placed  by  the  statute  upon  the  defendant  in  this 
case  is  to  clearly  prove  the  fraud  alleged  and  claimed  by  it.1 

5.  Fraud — Us  definition  and  elements.  One  of  the  curious 
things  about  fraud  is  that  courts  hardly  ever  undertake  to 
define  it.  It  is  rather  difficult  of  definition  because  it  has  so 
many  varied  forms  and  shapes  that  no  single  definition  can 
hardly  be  framed  to  cover  all  kinds  of  fraud.  The  elements 
of  fraud  that  may  enter  into  all  fraudulent  transactions  are 
bad  faith,  intentionally  mis-stating  a  fact,  intentionally  conceal- 
ing a  fact  which,  if  the  truth  would  be  communicated  instead 
of  the  false  statement,  the  contracting  party,— that  is  the 
other  contract  party. — would  not  have  entered  into  the  con- 
tract. Telling  a  bare,  naked  lie  or  concealing  a  fact  known  to 
a  party  will  furnish  ground  for  relief  only  when  it  is  done  with 
the  intention  that  another  shall  believe  the  affirmative  falsehood, 
or  that  he  will  believe  in  the  existence  of  the  fact  which  the 
thing  or  fact  fraudulently  concealed  would  have  disproved. 


lWood  v.  John  Hancock  Life  Insurance  Co.,   Franklin   Com.  Pleas,  Kin- 
kead,  J. 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1547 

If  you  find  that  the  deceased  insured,  II.  W.,  made  a  false 
statement  when  he  stated  in  the  application  for  insurance  that 
the  last  time  he  consulted  a  physician  was  in  November,  1909,  and 
that  it  was  for  overwork  and  for  nervousness;  that  he  was  fully 
recovered  and  that  he  was  treated  by  a  physician,  that  he  did 
not  consult  a  physician  at  other  times  than  as  claimed  in  the 
testimony,  you  will  then  consider  the  good  faith,  honesty  and 
integrity  of  that  statement  and  of  H.  W.  in  making  it ;  whether 
it  was  clearly  made  in  bad  faith  with  the  intention  to  deceive 
the  defendant  and  obtain  the  issuance  of  the  policy;  whether  it 
was  false,  material  and  induced  the  company  to  issue  the  policy. 

The  jury  is  instructed  that  it  may  consider  and  determine 
whether  the  answer  and  statement  of  the  deceased  insured  was 
such  a  wilfully  false  and  fraudulent  statement  as  to  be  material 
in  the  issuance  of  the  policy  without  regard  to  the  existence  or 
non-existence  of  the  disease  from  which  he  suffered.  Under  the 
law  a  material  representation  by  an  answer  to  an  interrogatory 
in  an  application  for  insurance  as  to  a  fact  may  make  the  same 
void, — that  is,  the  policy  void.  The  fact  in  controversy  here  is 
the  last  treatment  by  a  physician.  Another  fact  is  what  the 
disease  was  for  which  he  was  treated.  These  are  the  two  facts 
involved  which  the  jury  are  called  upon  to  determine;  whether 
either  one  or  both  of  them  was  truthful  or  false.  You  are  in- 
structed that  if  either  one  of  these  facts  alone  in  your  judgment 
constitutes  a  material  and  false  representation,  which,  if  relied 
upon,  operated  as  an  inducing  cause  in  the  issuance  of  the 
policy  by  the  defendant  company  to  II.  W.,  if  either  one  or  both 
of  the  statements  were  false,  it  constitutes  a  full  defense  to  this 
action.  If  they  are  truthful,  of  course  they  do  not.  If  you 
find  the  answer  to  have  been  wilfully  false,  that  it  was  fraudu- 
lent, and  that  if  the  company  had  known  that  the  insured  was 
treated  at  the  times  claimed  in  evidence  by  the  defendant,  and 
that'  it  would  have  been  of  such  materiality  as  thai  it  is  clear 
to  you  that  the  company  relied  upon  it  and  was  thereby  induced 
to  issue  the  policy,  and  whether  but  for  the  false  statements  and 
fraud  it  would  not  have  issued  the  policy,  then  in  that  event, 
of  course,  your  verdid   would  he  for  the  defendant. 


1548  INSTRUCTIONS  TO  JURY. 

Insurance  is  a  risk.  It  is  taking  a  chance  on  the  life  of  another, 
in  a  sense,  for  a  consideration,  and  the  company  has  a  legal 
right  to  full  and  honest  disclosures  on  the  part  of  the  insured 
of  all  material  facts  which  may  or  may  not  induce  it  to  issue 
the  policy.  It  must  also  be  made  lo  appear  that  the  agent  of 
the  company  had  no  knowledge  of  the  falsity  or  fraud  of  such 
answer.  By  such  agent  is  meant  the  one  receiving  and  taking 
the  policy  and  not  the  examining  physician.1 

i  Wood  v.  John  Hancock  Life  Insurance  Co.,  Franklin  Com.  Pleas,  Kin- 
kead,  J. 

Sec.  1802.  Measure  of  damages  when  plaintiff  exchanged  land 
for  merchandise — Market  value  of  land  not 
considered. 

If  you  find  for  the  plaintiff  you  will  allow  him  as  damages 
by  the  application  of  the  following  rule.  If  you  find  that  defend- 
ant made  misrepresentations  concerning  the  value  of  the  stock 
of  merchandise  which  he  exchanged  for  the  land,  plaintiff  will 
be  entitled  to  recover  the  difference  between  the  market  value 
of  the  merchandise  as  it  actually  was  and  as  represented, 
unaffected  by  the  market  value  of  the  land.  It  makes  no  differ- 
ence whether  plaintiff  agreed  to  pay  in  money  or  property.  In 
either  event  he  is  entitled  to  the  price  he  fixed  and  which  the 
other  party  undertook  to  pay ;  he  can  not  be  compelled  to  accept 
a  lower  price  because  of  another's  fraud,  and  thereby  allow  a 
wrongdoer  a  bargain  he  could  not  have  obtained  by  fair  dealing. 
"When  compelled  to  make  good  his  representation,  he  should  be 
required  to  pay  the  injured  party  that  which  he  represented 
to  him  he  would  receive,  and  for  which  the  innocent  party  parted 
with,  which  as  stated  is  the  difference  between  the  market  value 
of  the  merchandise  as  it  actually  was  and  as  represented, 
unaffected  by  the  market  value  of  the  land.1 

i  Stoke  v.  Converse,  153  Iowa,  274,  133  N.  W.  709;  Am.  Ann.  Cas.  1913, 
E.  270;  Ryan  v.  Miller,  236  Mo.  496,  139  S.  W.  128;  Am.  Ann. 
Cas.  1912,  D.  540. 


FRAUD FALSE    REPRESENTATIONS,    ETC.  1540 

Sec.  1803.  False  representation  concerning  merits,  working 
and  adaptability  of  patented  machine — 
Claimed  by  cross-petition. 

1.  Representation  and  warranty  distinguished. 

2.  Essentials  of  a  representation. 

3.  Duty  of  purchaser  to  be  reasonably  diligi  ut — "When  facts 

peculiarly  within  knowledge  of  other  party. 

4.  Existing   facts   distinguished  from   opinion    and  dealers 

talk. 

5.  Matters  within  knowledge  of  vendor— Parch  as,  r  without 

knowledge,    and   inspection    impossible    without    great 
expense. 

6.  When   operation   and   utility  of  an    invention   mutter  of 

opinion. 

7.  General  commendation  open  to  difference  of  opinion. 

8.  Direction  to  jury  to  apply  the  law  and  find  the  facts. 

9.  Circumstances  may  establish  falsity. 
10.  Must  be  material  and  relied  upon. 

1.  Representation  and  warranty  distinguished.  The  pleading 
of  defendants  refers  to  the  language  of  the  representation  as  a 
warranty.  As  matter  of  language  there  may  be  no  difference 
whatever  between  a  representation  and  a  warranty,  although 
tlic  .  xternal  distinction  between  them  are  some  times  marked 
by  the  fact  that  a  warranty  is  a  part  of  the  contract,  whereas 
a  representation  is  in  no  case  more  than  an  inducement  to  a 
contract;  it  is  never  part  of  one. 

2.  Essentials  of  a  representation.  The  representation  must  be 
of  a  fact,  and  not  of  an  opinion,  it  must  be  f.dse.  and  a  material 
inducing  cause  operating  upon  the  mind  of  him  to  whom  it  is 
made  to  his  injury  or  detriment,  and  it  must  be  made  by  the 
person  in  bad  faith  with  knowledge  of  its  falsity  and  with  a 
purpose  to  mislead.  The  one  claiming  its  falsity  must  show  that 
it  was  actually  false  ami  fraudulent,  that  is.  that  he  did  not 
have  an  honest  belief  in  its  truth,  and  with  an  intention  of 
inducing  the  one  to  whom  it  was  made  to  act  upon  it. 


1550  INSTRUCTIONS  TO  JURY. 

The  question  is  whether  the  statement  l>3r  plaintiff  to  defend- 
ants with  reference  to  the  merits,  working  and  adaptability  of 
the  machine  comes  within  the  class  of  representations  which  are 
considered  in  law  as  fraudulent  if  they  are  not  true  in  all 
respects  as  made. 

3.  Duty  of  purchaser  to  be  diligent — When  facts  peculiarly 
within  knowledge  of  other  party.  The  general  doctrine  of  the 
law  is  that  under  ordinary  circumstances  a  purchaser  or  lessee 
is  required  to  use  reasonable  diligence  to  avoid  deception.  And 
in  general,  and  in  the  absence  of  special  conditions,  circumstances 
and  relations  between  the  parties,  the  subject-matter  of  the 
representation  is  a  fact  or  facts,  may  not  be  entirely,  solely  and 
peculiarly  within  the  knowledge  of  the  vendor,  or  lessor,  and 
may  be  one  as  to  which  the  purchaser  or  lessee  may  have  equal 
and  available  means  and  opportunity,  in  whole  or  in  part,  for 
information;  and  in  such  case  if  no  artifice  or  deception  is 
used  to  prevent  inquiry  or  investigation,  the  rule  is  that  a  pur- 
chaser or  lessee  must  make  use  of  his  own  means  of  knowledge, 
and  failing  so  to  do,  he  can  not  recover  on  the  ground  that  he 
was  misled.  Eeasonable  diligence  is  all  that  is  required,  and 
this  must  depend  upon  the  particular  conditions  and  circum- 
stances.    [20  Cyc.  49.] 

4.  Existing  facts  distinguished  from  opinion  and  dealers  talk. 
And  a  false  representation  of  an  existing  fact  for  which  the 
law  affords  redress  is  to  be  distinguished  from  what,  in  particular 
cases,  may  be  considered  as  nothing  more  than  a  mere  expression 
of  an  opinion  which  furnishes  no  ground  of  liability  except  in 
exceptional  cases.  Coming  within  the  classification  of  the  expres- 
sion of  opinion  are  what  are  considered  as  "dealers  talk,"  such 
as  general  assertions  and  expressions  in  commendation  of  any- 
thing sold  or  leased.  In  some  instances,  statements  which  are 
merely  descriptive  of  the  operation  and  utility  of  anything  the 
subject-matter  of  sale  or  lease  are  to  be  considered  as  mere 
expressions  of  opinion,  or  "dealers  talk,"  upon  which  the  pur- 
chaser or  lessee  can  not  safely  rely. 

5.  Matters  within  the  knowledge  of  vendor — Purchaser  without 
knowledge,   and   inspection   impossible    without   great   expense. 


FRAUD FALSE    REPRESENTATIONS,    ETC.  1551 

But  if  the  matters  covered  by  the  statements  of  vendor  or  lessor 
are  peculiarly  within  his  knowledge,  and  the  purchaser  or  lessee 
is  ignorant  thereof,  or  is  ignorant  of  the  business,  or  knows 
nothing  of  the  nature  and  quality  or  operation  of  the  subject- 
matter  of  the  sale  or  lease,  and  the  same  is  situated  at  a  distant 
place  so  that  an  inspection  can  not  be  made  without  expense  and 
inconvenience,  the  purchaser  or  lessee  may  then  safely  rely  on 
the  vendor's  or  lessee's  positive  statements  regarding  the 
property.     [20  Cye.  58  ■  13  Minn.  223 ;  29  N.  J.  Eq.  257.] 

6.  When  operation  and  utility  of  an  invention  matter  of 
opinion.  The  rule  of  law  is,  that  in  some  cases  and  under  certain 
circumstances,  statements  as  to  the  operation  and  utility  of  an 
invention  may  be  mere  matter  of  opinion,  upon  which  a  pur- 
chaser can  not  safely  rely.1 

7.  General  commendation  open  to  difference  of  opinion.  And 
again  it  is  settled  law  that  there  is  no  legal  responsibility  for 
general  commendations  which  are  manifestly  open  to  a  difference 
of  opinion,  and  which  do  not  necessarily  imply  untrue  assertions 
concerning  matters  of  direct  observation,  and  as  to  which  persons 
in  general  do  not  place  reliance.2 

8.  Direction  to  jury  to  apply  the  law  and  find  the  facts.  The 
foregoing  statements  of  general  doctrine  have  been  given  the 
jury  to  be  applied  in  weighing  the  admitted  language  used  in 
the  statement  concerning  the  quality  and  capacity  of  the 
machines,  in  the  light  of  the  conflicting  testimony  of  the  persons 
having  knowledge  of  the  construction  and  operation  of  the 
different  types  of  pea  viner  machines,  who  have  given  their 
testimony  in  this  case,  both  as  to  their  practical  mechanism  and 
their  operation,  as  well  as  their  opinions  touching  the  quality 
and  capacity  of  the  machines  in  question;  and  also  to  enable 
you  to  determine,  in  the  light  of  the  evidence,  whether  the 
statements  used  by  the  plaintiff— considered  in  the  light  of  the 
conflicting  evidence — were  the  mere  statement  of  an  opinion,  as 


iNeidefer  v.  Chastain,  71  Ind.  363,  36  Am.  TCop.  198;  Billow,  Fraud,  13; 

Hunter  v.  McLaughlin,  43  End.  38,  !>  Ind.  572;  4  Blackf.  57. 
zDeminp  v.  Darling,  148  MaHs.  504,  2  L.  R.  A.  743;  Dealers  talk,  53  Cyc. 

20,  41    Am.   Rep.  215,  10  Am.  Rep.  315. 


1552  INSTRUCTIONS  TO  JURY. 

that  term  is  understood  in  law,  and  as  explained  to  you  in  these 
instructions,  or  whether  it  was  the  statement  of  a  fact  or  facts, 
the  subject  of  false  representation  in  law.  There  is  too  much 
difficulty  underlying  the  philosophy  of  the  distinction  between 
opinion  and  fact,  the  subject  of  false  representation,  as  found 
among  the  authorities  to  warrant  much  further  reference  thereto 
in  these  instructions  to  a  jury.  It  is  sufficient  to  state  that  each 
case  must  depend  upon  the  special  facts  attending  the  same,  and 
particular  rules  can  seldom  be  framed  to  reach  them,  and 
general  rules  may  have  only  a  remote  bearing.  I  have,  however, 
as  best  I  could,  endeavored  to  so  state  the  general  rules  in  such 
a  way  as  to  draw  your  attention  thereto  as  they  bear  upon  the 
special  circumstances  of  this  case. 

The  jury  are  aware  that  you  will  have  to  determine  which 
view  of  the  question  of  the  quality  and  capacity  of  the  machines 
in  question  you  will  take,  as  disclosed  by  the  conflict  in  the 
testimony  or  as  disclosed  by  the  evidence;  whether  the  one 
which  will  render  the  statements  of  plaintiff  false  as  false  repre- 
sentations, and  to  the  extent  that  you  may  find  that  the  plaintiff 
made  them  with  knowledge  of  their  falsity,  and  with  a  dishonest 
intention  and  purpose  to  create  a  clear  impression  and  belief  on 
the  part  of  the  defendants  of  the  existence  of  a  fact  or  facts, 
which  if  true,  would  be  sufficient  to  influence  their  conduct  in 
taking  the  machine,  rendering  the  plaintiff  responsible  therefor 
to  the  extent  of  denying  it  relief ;  or,  whether  you  will  find  that 
they  were  mere  expressions  of  commendations  as  in  "dealers 
talk"  and  falling  within  the  classification  of  opinion,  which  will 
prevent  plaintiff  from  recovery  in  this  action.  But  the  jury 
may  consider  whether  a  part  of  the  language  used  comes  within 
the  latter  classification — opinion — or  whether  a  part  comes 
within  the  former — false  representation.  The  requirement  of 
the  law  being  that  the  statement  must  be  sufficient  to  influence 
conduct,  the  statement,  though  partaking  of  the  nature  of  an 
expression  of  an  opinion  by  way  of  commendation  of  the  subject 
matter  of  a  proposed  contract,  yet  may  come  within  the  above 
requirement,  when  made  by  one  having  superior  position  and 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1553 

information,  and  being  sufficient  to  influence  conduct  rendering 
the  person  making  the  same  liable  for  the  misrepresentation.3 

A  representation  is  false  in  contemplation  of  law  as  well  as 
in  morals  if  it  is  false  in  a  plain,  practical  sense,  that  is,  if  it 
■would  be  apt  to  create  a  false  impression  upon  the  mind  of  an 
average  man.  and  constitute  a  material  inducement  in  the 
transaction. 

9.  Circumstances  may  establish  falsity.  Knowledge  of  the 
falsity  of  a  representation  found  to  be  false,  and  the  purpose 
and  intent  with  which  the  same  may  have  been  made,  need  not 
be  proved  by  direct  evidence,  but  may  be  inferred  from  the  facts 
and  circumstances  appearing  in  the  evidence.  That  is,  if  one 
stands  in  a  peculiar  situation  in  regard  to  the  facts,  the  same  are 
specially  within  his  reach  and  knowledge,  and  the  falsity  being 
established,  the  jury  may  reasonably  infer  that  he  had  knowledge 
of  the  falsity,  and  that  he  intended  to  deceive,  and  it  is  not 
incumbent  upon  the  party  with  whom  he  dealt  to  prove  knowl- 
edge by  direct  evidence.4 

Now,  gentlemen,  in  the  light  of  these  instructions  you  will 
determine  whether  the  statements  were  false  representations  in 
the  light  of  and  within  the  meaning  of  the  law  as  given  you  in 
these  instructions.  If  you  find  that  they  are  not,  you  will  at 
once  find  in  favor  of  plaintiff  and  proceed  to  consider  the 
question  of  damages.  But  if  you  find  that  they  were  false  repre- 
sentations, you  will  then  proceed  to  determine  whether  they  were 
material  in  the  transaction,  and  whether  defendants  relied  upon 
the  same  to  their  disadvantage. 

10.  Must  be  material  and  relied  upon.  The  representation 
must  have  been  material,  that  is,  it  must  have  operated  as  one 
of  the  inducing  causes  in  influencing  the  action  of  defendants 
in  making  the  contract. 

And  the  representation  must  have  been  relied  upon  and 
acted  upon  by  defendants  to  their  injury  to  operate  as  a  defense 
in  this  action.     The  law  will  not  take  notice  of  the  false  repre- 

:'  Wilson  ■»'.  Nichols,  72  Conn.  173. 

*  2fi  X.  Y.  117,  53  Ala.   If,:;.  10  Ouah.  392. 


1554  INSTRUCTIONS  TO  JURY. 

sentation  if  it  had  no  material  influence  upon  the  action  of 
defendants.  The  only  question  upon  this  point  is  whether  the 
representation  made  by  plaintiff  was  adequate  to  influence,  and 
did  influence  defendants,  not  whether  it  was  the  sole  inducement 
to  the  action  taken;  if  it  was  sufficient  to  influence  defendants 
to  some  real  extent,  that  is  enough.  The  law  does  not  undertake 
nicely  to  measure  the  extent  of  influence. 

The  jury  will  look  to  all  the  evidence  bearing  on  this  point, 
consider  the  nature  of  the  representation  itself  in  the  light  of 
the  nature  of  the  transaction,  the  situation  of  the  defendants, 
their  desire  in  the  matter,  their  knowledge,  if  any,  of  the  customs 
and  course  of  business  of  those  undertaking  to  supply  persons 
with  pea  viner  machines,  in  letting  them  out  to  their  customers, 
the  ability  of  defendants  to  secure  such  machines.  And  the  jury 
may  look  to  the  facts  and  circumstances  occurring  subsequently 
to  the  making  of  the  contract,  to  the  conditions  and  circum- 
stances connected  with  and  surrounding  the  cancellation  of  the 
contract,  and  the  causes  operating  upon  the  minds  of  the  defend- 
ant's in  the  cancellation  of  the  contract  with  plaintiffs. 

The  defendants  claim  that  they  did  not  learn  of  the  alleged 
falsity  of  the  statements  and  representations  until  some  time 
after  the  contract  was  made.  Nevertheless  if  they  were  false, 
and  defendants  believed  them,  and  relied  upon  them,  in  whole 
or  in  part,  that  would  be  sufficient. 

If  you  find  that  the  representations  were  false,  that  they  were 
material,  and  that  the  defendants  relied  in  whole  or  in  part 
upon  the  same,  then  your  verdict  should  be  for  the  defendants. 
But  if  you  find  that  defendants  did  not  rely  upon  the  represen- 
tations, even  though  they  were  false,  their  mere  falsity,  without 
reliance  thereon,  would  not  operate  to  discharge  them  from 
liability  in  this  action. 

Now,  gentlemen  of  the  jury,  if  the  falsity  of  the  statements  of 
plaintiff,  as  false  representations  in  law — as  defined  and 
explained  to  you  in  these  instructions — and  reliance  thereon  by 
defendants,  are  not  established  by  a  preponderance  of  the 
evidence,  your  verdict  must  be  for  the  plaintiff.  And  in  such 
case  you   will   award  plaintiff  such   compensation   by  way   of 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1555 

damages   as   will  justly   compensate   it   for   the   breach  of  the 

contract  entered  into  by  the  parties.' 

*  The   Pillmore-Anderegg   Co.    r.   Crites.   et  al.,    Franklin    Co.   Com.   Pleas, 
Kinkead,  J.     Affirmed  by   Circuit  Court. 

Sec.  1804.     Fraud  in  sale  of  stock  in  proposed  company. 
Rather  complete  charge  embracing: 

1.  Burden  of  proof. 

2.  Degree  of  evidence  required. 

3.  Proof  of  intent  and  purpose — Circumstantial  evidence. 

4.  Declarations — Consideration  by  jury. 

5.  Failure  of  party  to  offer  evidence  or  make  explanation 

naturally  to  be  expected  of  him. 

6.  Failure  to  call  witness. 

7.  Jury  may  reason  from  probabilities. 

8.  Failure  of  party  to  recollect  important  facts. 

9.  Fraud  defined  and  explained — Act  capable  of  two  con- 

structions, one  fraudulent,  another  not. 

10.  Must  be  relied  upon. 

11.  Representation  must  be  to  a  material  fact. 

12.  Must  be  past  or  existing  fact. 

13.  Puffing. 

14.  Promises — When  fraudulent — When  not. 

15.  Must  be  relied  upon. 

16.  Knowledge  of  complainant — His  duty  to  be  prudent  and 

careful. 

17.  Whether    written    contract    of   previous   representations 

relied  upon. 
1.  Burden  of  proof.  The  sole  question  is  whether  fraud  was 
practiced  or  not.  The  court  instructs  the  jury  that  fraud  is 
never  presumed,  but  must  be  proved,  to  entitle  a  party  to  relief 
upon  the  ground  that  it  has  been  fraudulent,  and  the  presump- 
tion of  law  is  that  the  business  transactions  of  every  man  are 
done  in  good  faith  and  for  an  honest  purpose;  and  anyone  who 
alleges  thai  they  are  done  in  bad  faith,  or  for  ;i  dishonest  purpose, 
takes  upon  himself  the  burden  of  proving  by  specific  acts  and 
circumstances  tending  to  prove  fraud,  that  such  acts  were  done 
in  bad  faith. 


1556  INSTRUCTIONS  TO  JURY. 

2.  Degree  of  evidence  required.  The  degree  of  evidence  is 
like  that  prevailing  in  ordinary  civil  actions,  it  being  necessary 
for  plaintiff  to  establish  his  claims  by  a  preponderance  of  evi- 
dence, which  is  the  greater  weight  of  credible  testimony. 

3.  Proof  of  intent  and  purpose — Circumstantial  evidence.  The 
act  or  acts  charged,  involving  the  question  of  intent  and  purpose 
with  which  it  is  claimed  that  the  defendant  did  the  thing  alleged, 
the  court  states  to  the  jury  that  this  may  be  made  out  either  by 
direct  and  positive  testimony,  or  it  may  be  shown  by  circum- 
stantial evidence  as  well.  Facts  and  circumstances  may  be  shown 
from  which  the  inference  of  fraud  which  is  alleged,  may 
be  drawn  by  the  jury.  Fraud  may  be  made  to  appear  by 
marshalling  the  circumstances  surrounding  the  transaction  by 
deducting  therefrom  the  fraudulent1  purpose^  when  if  may 
reasonably  be  drawn  therefrom.  If  the  circumstances  which  are 
proved  by  a  preponderance  of  the  evidence  are  such  as  to  warrant 
the  jury  in  believing  that  the  fraud  charged  has  been  committed, 
they  may  so  find. 

In  ascertaining  the  purpose  and  intent  of  the  defendant  the 
jury  may  consider  the  conditions  respecting  the  lands  in  question, 
and  the  title  thereto,  at  the  time  the  representations  were 
claimed  to  have  been  made ;  you  may  consider  the  written  con- 
tract of  subscription  which  Avas  prepared  by  the  defendant, 
as  well  as  all  other  documentary  and  other  evidence. 

4.  Declarations — Consideration  by  jury.  It  is  within  the 
province  and  duty  of  the  court,  without  any  inference  that  the 
court  is  in  any  degree  expressing  an  opinion  in  the  matter,  to  say 
to  the  jury  that  evidence  of  oral  declarations  of  parties  should 
be  received  with  caution ;  the  jury  may  consider  the  liability  of 
the  human  mind  to  err  in  recollecting  and  repeating  statements 
and  declarations  made  by  persons;  the  jury  may  take  into 
account  the  fact  that  such  evidence  is  sometimes  subject  to 
imperfection  and  mistake,  because  the  party  making  the  same 
may  not  have  clearly  expressed  his  meaning,  or  the  witness  may 
not  have  properly  understood  him ;  and  it  may  happen  that  the 
witness,  by  unintentionally  altering  a  few  of  the  expressions 
really  used,   gives   an   effect   to   the   statement   or   declaration 


FRAUD FALSE    REPRESENTATIONS,    ETC.  1557 

completely  at  variance  with  what  the  party  actually  did  say. 
Such  evidence,  when  clearly  proven  is  entitled  to  as  much  con- 
sideration by  the  jury  as  any  other.  It  is  within  the  sole 
province  of  the  jury  to  weigh  such  evidence  and  to  give  it  such 
consideration  to  which  it  is  entitled,  in  view  of  all  the  other 
evidence  in  the  case.  It  is  the  duty  of  the  court  simply  to  state 
to  the  jury  that:  such  evidence  should  be  received  with  great 
caution  and  scrutiny. 

5.  Failure  of  party  to  offir  evidence  or  make  explanation 
naturally  to  be  expected  of  him.  "Where  evidence  tends  to  fix 
a  liability  on  a  party  who  has  it  in  his  power  to  offer  other 
evidence  which,  if  there  is  in  fact  no  liability,  would  naturally 
be  in  existence  and  within  the  power  or  control  of  the  one 
sought  to  be  charged,  and  whose  interests  if  would  naturally 
be  to  produce  it,  and  without  satisfactory  explanation,  he  fails 
to  do  so,  the  jury  may  draw  such  inferences  therefrom  as  its 
judgment  may  warrant.  It  is  an  inference  of  fact  for  the  jury 
and  not  a  presumption  of  law.1 

6.  Failure  to  call  witness.  The  general  rule  is  that  a  party 
is  not  to  be  prejudiced  by  his  failure  to  call  a  witness  who  is 
equally  available  to  the  other  party.2 

7.  Jury  may  reason  from  probabilities.  Juries  ma3r  often 
reason  according  to  probabilities,  drawing  an  inference  that 
the  main  fact  in  issue  existed,  from  collateral  facts  not  directly 
proving,  but  strongly  tending  to  prove  its  existence. ! 

8.  Failure  of  party  to  recollect  important  facts.  Where  a 
party  testifies  to  an  important  transaction  in  his  own  interests 
as  well  as  in  the  interests  of  others,  which  may  have  been 
attended  by  circumstances  calculated  in  the  opinion  of  the 
jury  to  make  a  strong  impression,  but  such  party  fails  to 
recollect  and  testify  to  matters  which  the  jury  may  believe  if 
they  had  been  answered  might  have  had  a  material  bearing  on 
the    questions   at    issue,    the    jury   may   make   such   inferences 


i  Moore  on    Facts,    sees.    :>C>'.l,   564. 

2  Moore  on    Facts,   sec.   567. 

3  Moore  on   Facts,  sec.  566. 


1558  INSTRUCTIONS  TO  JURY. 

therefrom  as  in  its  judgment  it  deems  proper  and  warranted 
by  the  facts  and  circumstances  shown  by  the  evidence.4 

9.  Fraud  defined  and  explained — Act  capable  of  two  con- 
structions, one  fraudulent,  another  not.  Fraud  is  not  to  be  pre- 
sumed ;  on  the  contrary  the  law  presumes  that  all  men  are  fair 
and  honest,  that  their  dealings  in  good  faith,  and  without  inten- 
tion to  defraud.  I  now  further  state  to  you  that  where  a 
transaction  is  called  in  question  which  is  equally  capable  of 
two  constructions — one  that  it  is  fair  and  honest  and  one  that 
it  is  dishonest — then  the  rule  of  law  in  such  case  is  that  the 
fair  and  honest  construction  must  prevail,  and  the  transaction 
called  in  question  must  be  presumed  to  be  fair  and  honest.5 

10.  Must  be  relied  upon.  If  one  represents  a  fact  as  true  to 
another  which  he  knows  to  be  false,  and  makes  the  representa- 
tion in  such  a  way,  and  under  such  circumstances  as  to  induce 
a  reasonable  and  prudent  man  to  believe  that  the  matter  stated 
is  true,  and  the  representation  is  meant  to  be  acted  upon,  and 
the  person  to  whom  it  is  made,  believing  it  to  be  true,  acts  upon 
the  faith  of  it,  and  suffers  damage  thereby,  this  is  fraud 
sufficient  to  sustain  an  action  for  deceit. 

11.  Representation  must  be  to  a  material  fact.  A  misrepre- 
sentation to  be  fraudulent  must  be  as  to  a  material  matter  of 
fact;  it  must  be  false,  it  must  be  known  to  be  false  by  the  party 
making  it,  or  it  must  be  made  recklessly  without  any  knowledge 
of  its  truth,  and  as  a  positive  assertion ;  it  must  be  relied  upon 
by  the  person  to  whom  it  is  made ;  it  must  be  made  with  the 
intention  that  it  be  acted  upon  by  the  party  to  whom  made,  and 
constitute  the  inducement  to  enter  into  the  transaction ;  it  must 
work  injury  or  result  in  damages  to  the  person  relying  thereon. 
If  all  these  circumstances  concur,  they  constitute  fraud.  The 
absence  of  any  one  of  them  is  fatal  to  recovery. 

12.  Must  be  past  or  existing  fact.  To  constitute  fraud  the 
misrepresentation  complained  of  must  have  been  as  to  a  fact, 
either  a  past  fact  or  an  existing  fact. 


4  Moore  on  Facts,  sec.  830. 

sSchraeder  v.  Walsh,  120  111.  410:  Hill  v.  Reifsnider,  46  Md.  555;  Tomp- 
kins v.  Nichols,  53  Ala.  197. 


FRAUD FALSE   REPRESENTATIONS,    ETC.  1559 

13.  Puffing.  What  is  ordinarily  understood  as  puffing  is  not 
fraud;  that  is,  undue  commendation  not  amounting  to  actual 
misrepresentation  of  past  or  present  material  facts  does  not 
amount  to  fraud. 

Such  boastful  assertions,  or  highly  exaggerated  descriptions 
or  claims  do  not  amount  to  fraudulent  misrepresentations  or 
deceit.  An  expression,  of  opinion  or  belief  is  not  a  proper 
representation  of  fact,  and  though  false,  does  not  amount  to 
fraud  and  is  not  actionable. 

14.  Promises — When  fraudulent — When  not.  The  test  of 
deception  and  fraud  being  a  misrepresentation  of  an  existing  or 
past  fact  or  transaction,  an  engagement  or  promise  to  be 
fulfilled  in  the  future  is  not  a  representation.  A  promise,  or 
the  statement  of  something  to  be  done  in  the  future,  though 
fraudulently  made,  even  with  no  intention  of  performing  the 
same,  will  not  ordinarily  and  in  the  absence  of  peculiar  circum- 
stances rendering  it  otherwise,  render  the  one  making  them 
liable.  On  the  other  hand,  there  may  be  circumstances  under 
which  representation  of  things  to  be  done  in  the  future — which 
are  of  the  nature  of  promises,  may  be  actionable. 

For  example,  where  representations  and  promises  are  made 
that  certain  things  will  be  done  in  the  future,  and  are  so  made 
in  connection  with  and  as  part  of  false  representation  of  past 
and  existing  facts,  and  concomitantly  therewith,  and  they  are 
of  such  nature  as  to  form  and  become  an  essential  and  material 
part  of  the  representation  of  the  past  or  existing  fact,  so  that 
the  latter  representation  would  be  unavailing  as  an  inducement 
without  the  fraudulent  promise  to  the  one  to  whom  they  are 
made  to  act  thereon,  and  the  alleged  fraudulent  promise  con- 
stitute such  a  material  inducing  cause  in  the  transaction,  as 
to  be  and  constitute  a  material  part  of  the  device  or  medium 
through  which  the  fraud  is  committed,  and  there  is  no  intention 
to  perform  or  carry  out  such  promises,  then  they  may,  in  con- 
nection with  the  representation  of  the  existence  of  past  and 
existing  facts,  constitute  actionable  fraud. 

15.  .l/(/.s7  be  relied  upon.  If  the  representations  were  false, 
to  warrant  recovery  by  plaintiff  it   is  incumbent  upon  him  to 


1560  INSTRUCTIONS  TO  JURY. 

show  that  he  relied  upon  the  alleged  false  representations,  or 
any  one  of  them,  as  a  material  inducing  cause  in  the  signing 
of  the  subscription  contract  and  in  the  payment  of  the  money. 
It  is  not  necessary  that  plaintiff  should  have  relied  exclusively 
upon  defendant's  statement,  that  they  should  have  been  the  sole 
inducement  to  doing  the  act  complained  of,  or  resulting  in  his 
damage.  It  will  be  sufficient  if  such  representations  if  they 
were  made  and  were  false,  or  any  one  of  them,  exerted  a  material 
influence  upon  his  mind,  although  they  constituted  only  one  of 
several  motives  which  acting  together  produced  the  result. 

16.  Knowledge  of  complainant — His  duty  to  be  prudent  and 
careful.  If  a  person  to  whom  a  representation  is  made  knows 
that  it  is  false,  he  can  not  treat  the  same  as  a  fraud  for  any 
purpose,  for  a  man  can  not  rely  on  the  truth  of  a  representation 
which  he  knows  to  be  false. 

The  law  exacts  of  anyone  who  claims  that  he  has  relied  upon 
and  has  been  misled  by  alleged  false  representations,  that  he 
shall  himself  have  been  prudent  and  cautious.  This  principle 
finds  frequent  application  in  sales  and  transfers  of  property 
which  is  open  to  inspection  of  both  parties.  And  there  is  no 
reason  why  it  should  not  be  applicable  to  this  transaction,  even 
.though  the  property  may  not  have  been  within  reasonable 
opportunity  of  inspection,  and  though  the  defendant  have  had 
superior  knowledge  of  conditions. 

The  complaining  party,  the  plaintiff  here,  in  an  action  of 
deceit  must  show  that  he  has  been  prudent  and  careful  in  his 
understanding  and  ascertainment  of  the  facts  and  especially  in 
reading  and  signing  contracts  which  may  contain  statements 
of  alleged  facts  inconsistent  or  at  conflict  with  the  represen- 
tations claimed  to  have  been  made  and  relied  upon;  it  is 
incumbent  upon  him  to  show  that  he  has  not  been  misled 
through  any  fault  or  neglect  on  his  part.  He  must  show  that 
he  has  not  omitted  to  exercise  ordinary  care  to  guard  against 
deception  and  fraud,  except  where  he  may  be  thrown  off  his 
guard,  or  where  he  has  been  led  to  do  so  by  the  other  party.6 


6Kinkead,  Torts,  sec.  732,  91  111.  343. 


FRAUD FALSE   REPRESENTATIONS,    ETC.  1561 

17.  Whether  written  contract  or  previous  representations 
relied  upon.  When  a  contract  is  prepared  and  signed  by  parties 
as  a  result  of  previous  negotiations  and  representations  between 
them  which  is  intended  to  constitute  the  contract  which  is  to 
be  made  as  a  result  and  embodiment  of  their  agreement  and 
contract,  and  the  party  who  is  complaining  that  he  was  induced 
to  make  it  and  to  perform  it  on  his  part  by  means  of  previous 
false  representations,  read  the  contract,  and  if  the  contract 
contains  statements  of  facts  at  variance  with  the  previous  false 
representations  of  which  he  complains,  the  jury  may  make  such 
inferences  therefrom  as  its  reason  and  judgment  suggest  touch- 
ing the  question  whether  the  plaintiff  relied  upon  the  contract 
or  whether  he  relied  upon  the  alleged  false  representations. 
If  the  conduct  of  plaintiff  in  signing  the  subscription  contract 
and  the  payment  of  his  money  was  not  influenced  by  the  false 
representations,  if  any  were  made,  if  he  was  informed  of  the 
real  facts  of  the  California  project,  or  if  he  acted  solely  on  the 
written  contract,  and  upon  the  statements  and  promises  in 
paying  his  money,  and  not  to  any  extent  upon  the  alleged  false 
representation,  he  can  not  in  that  event  recover. 

Rut  the  jury  is  instructed  that  it  is  not  essential  to  recovery 
by  the  plaintiff,  that  it  shall  appear  that  he  relied  upon  each  and 
all  cf  the  alleged  false  representations.  If  he  relied  upon  one, 
and  acted  upon  that,  it  would  be  suffieient. 

If  is  not  disputed  that  there  is  an  alleged  false  representa- 
tion of  an  alleged  existing  fact  claimed  to  have  been  made  as 
to  which  the  written  provisions  of  the  contract  are  silent.  If 
the  jury  believe  that  there  was  a  material  representation,  falsely 
made,  independently  of  the  facts  contained  in  the  written  con- 
tract which  you  may,  or  may  not.  believe  to  be  sufficient  to  put 
him  upon  his  guard  as  to  the  actual  facts,  and  you  believe  that 
he  may  have  been  negligent  in  this  respect,  and  you  may  infer 
that  he  relied  upon  the  eontraet  rather  than  upon  the  alleged 
representation,  you  will  consider  whether  the  other  false  alleged 
representation,  as  to  whieh  the  eontraet  is  silent,  was  or  was 
not  made,  and  if  it  was  made,  whether  plaintiff  relied  upon  it 
to  his  damage. 


1562  INSTRUCTIONS  TO  JURY. 

If  you  find  that  the  plaintiff  in  performing  his  part  of  the 
contract  did  not  rely  upon  any  alleged  false  representation  or 
representations,  then  he  can  not  recover. 

To  entitle  the  plaintiff  to  a  verdict  at  your  hands  he  must 
not  only  show  by  a  preponderance  of  evidence  that  the  represen- 
tation or  representations  were  made,  that  the  same  were  false, 
and  known  to  be  so  by  defendant,  and  that  plaintiff  relied  upon 
them  to  his  damage. 

If  you  should  find  any  of  the  alleged  representations  were 
made  by  defendant,  that  they  were  false,  and  known  to  be  so 
by  him,  or  that  they  were  recklessly  made  by  the  defendant 
without  knowledge,  that  they  were  relied  upon,  to  his  damage, 
your  verdict  should  be  for  the  plaintiff.  In  such  case  you  should 
assess  to  plaintiff  such  damages  as  you  may  find  him  to  have 
sustained,  not  beyond  the  amount  claimed  in  his  petition. 

The  measure  of  the  damages  which  plaintiff  may  have 
sustained,  if  you  find  in  his  favor,  would  be  the  difference 
between  what  plaintiff  received,  and  what  he  paid  to  the  defend- 
ant. In  considering  what  plaintiff  received,  the  jury  is  instructed 
that  the  plaintiff  had  the  right  to  decline  to  receive  the  stock 
tendered  him,  which  he  did  as  the  undisputed  evidence  discloses. 
I  am  unable  to  state  to  you  gentlemen  whether  he  legally  or 
equitably  is  entitled  to  any  interest  in  any  property  or  not 
because  there  is  no  evidence  here  upon  which  the  court  may  act 
in  this  matter.  I  can  only  say  that  if  you  find  that  the  plaintiff 
received  nothing  for  his  money,  the  measure  of  his  damages 
would  be  the  amount  of  money  so  paid  by  him  to  the  defendant 
with  interest  thereon  at  six  per  cent,  from  . 

Now  gentlemen,  if  you  find  that  defendant  made  no  material 
misrepresentation  or  misrepresentations  to  the  plaintiff,  as 
claimed,  or  if  you  find  he  did  make  them,  or  any  one  of  them, 
that  the  plaintiff  became  aware  of  the  falsity  of  them,  or  ought 
to  have  been  put  upon  his  inquiry  and  knowledge,  and  that  he 
relied  upon  the  terms  and  conditions  of  the  contract,  then  your 
verdict  should  be  for  the  defendant.7 
"<  Peirano  v.  Westwater,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 


FRAUD FALSE    REPRESENTATIONS,    ETC.  1563 

Sec.  1805.  Fraudulent  declaration  of  dividends  by  directors 
of  corporation — Action  against  directors  for 
loss  by  purchaser  of  stock. 

1.  Fraud — Burd(  n  of  proving. 

2.  Intent   in  fraud — Wrongful  conduct  supplies. 

3.  Fraud  defined — Knowledge  of  falsity,  actual  or  imput- 

able, essential. 

4.  Same — Jury    to    determine    whether    statements    made 

knowingly  or  recklessly. 

5.  Same — Fraudulent  dividend — Duties  of  directors  of  cor- 

poration— Care  required. 

6.  Same — When  directors  not  chargeable  with  Knowledge  of 

books. 

7.  Same — Directors   voting  or  assenting   to   declaration    of 

dividend  liable — When — The  statute  making  dividend 
unlawful  when.  < 

8.  Same — Liability    of    directors   for    acts    of    manager    of 

corporation. 

9.  Same — Misrepresentation     to     be    fraudulent    must     be 

material  and  relied  upon. 
10.  Same — Measure  of  damages. 

1.  Fraud — Burden  of  proving.  Fraud  is  never  presumed,  but 
must  be  proved  by  a  preponderance  of  the  evidence;  the  pre- 
sumption of  law  is  that  the  business  transactions  of  every  man 
are  done  in  good  faith  and  for  an  honest  purpose,  any  one  who 
alleges  that  such  acts  are  done  in  had  faith,  or  for  a  dishonest 
purpose  takes  upon  himself  the  burden  of  proving  by  specific 
acts  and  circumstances  tending  to  prove  fraud,  that  such  acts 
were  done  in  bad  faith. 

The  defendant  is  entitled  to  the  benefit  of  this  presumption 
in  the  consideration  of  this  case  until  the  jury  find  from  the 
evidence  that  such  presumption  has  been  overcome.3 

2.  Intent  in  fraud — Wronnfid  conduct  supplies.  While  intent 
is  an  ingredient  of  fraud,  accordinir  to  the  definition  just  given, 
the  jury  is  instructed  that'  where  the  party  or  parlies  charged, 
have  failed  to  exercise  ordinary  care  sufficient  to  learn  or  know 
the  truth  or  falsity  of  the  representations  complained  of,  such 


1564  INSTRUCTIONS  TO  JURY. 

wrongful  conduct  supplies  the  intent  essential  to  constitute 
fraud. 

To  enable  the  jury  to  apply  this  legal  rule  as  to  fraud  to  the 
facts  as  you  may  find  them  from  the  evidence,  your  attention 
is  directed  to  the  undisputed  evidence  that  defendants   were 

directors  of  the  Company ;  that  as  such  they  declared  a 

dividend,  etc.  The  circumstances  under  which  the  dividend  was 
declared,  the  justification  therefor,  and  the  facts  and  circum- 
stances relating  to  the  sale  of  stock  to  C.  are  in  dispute,  and 
the  ultimate  facts  concerning  these  transactions  are  for  you 
to  decide. 

It  is  charged  that  the  dividend  was  fraudulently  declared, 
when  the  company  was  insolvent,  for  the  purpose  and  intent  to 
deceive  the  public  and  plaintiff  in  the  purchase  of  stock;  that 
this  fraudulent  representation  together  with  other  fraudulent 
representations  as  to  the  condition  of  the  company  were  made 
by  defendants  to  plaintiff  with  intent  to  defraud  him  and  to 
induce  him  to  purchase  the  stock. 

The  defendants  claim  that  they  did  not"  know  that  the  com- 
pany was  insolvent  and  that  it  could  not  legally  declare  a 
dividend,  and  that  they  had  reasonable  ground  to  believe  that 
the  company  was  solvent  and  had  the  right  to  declare  the 
dividend,  that  as  directors  they  acted  prudently  as  ordinarily 
prudent  persons,  etc. 

The  jury  will  determine  the  fact,  etc. 

3.  Fraud  defined — Knowledge  of  falsity,  actual  or  imputable, 
essential.  A  fraud  consists  in  obtaining  an  undue  advantage  by 
means  of  some  act  or  omission  which  is  unconscientious  or  a 
violation  of  good  faith ;  the  act  or  omission  must  be  willful ;  in 
other  words  it  must  be  knowingly  and  intentionally  done. 

There  can  be  no  fraud,  or  misrepresentation  without  some 
moral  delinquency;  there  is  no  actual  legal  fraud  which  is  not 
also  a  moral  fraud.  This  immoral  element  consists  in  the 
necessary  guilty  knowledge  and  consequent  intent  to  deceive, 
sometimes  designated  by  the  technical  term  scienter.  No  mis- 
representation is  fraudulent  in  law,  unless  it  is  made  with  actual 


FRAUD FALSE   REPRESENTATIONS,    ETC.  1565 

knowledge  of  its  falsity,  or  under  such  circumstances  that  the 
law  must  necessarily  impute  such  knowledge  to  the  party  at 
the  time  it  is  made. 

A  party  making  an  untrue  statement,  having  at  the  time  no 
knowledge  whatever  on  the  suhject,  and  no  reasonable  grounds 
to  believe  it  to  be  true,  is  guilty  of  fraud,  and  his  claiming  that 
he  believed  it  to  be  true  can  not  remove  the  fraudulent  character. 
A  definite  statement  of  what  the  party  does  not  know  to  be  true, 
where  he  has  no  reasonable  grounds  for  believing  it  to  be  true, 
will,  if  false,  have  the  same  legal  effect  as  a  statement  of  what 
the  party  positively  knows  to  be  untrue. 

Nothing  short  of  fraud  will  sustain  an  action  like  this.  Fraud 
is  proved  when  it  is  shown  that  a  false  statement  or  representa- 
tion has  been  made  (1)  knowingly,  or  (2)  without  belief  in  its 
truth,  or  (3)  recklessly,  without  observing  ordinary  care  in 
learning  whether  it  be  true  or  false.  Tq  prevent  a  false  state- 
ment being  fraudulent,  there  must  be  an  honest  belief  in  its 
truth,  found  upon  reasonable  ground,  such  as  would  warrant  a 
reasonably  prudent  person,  under  the  circumstances — consider- 
ing his  duty  in  the  position  which  he  occupies — to  believe  in 
the  truth  of  the  statement. 

4.  Same — Jury  to  determine  whether  statements  made 
knowingly  fraudulent  or  recklessly  so.  It  is  for  the  jury  to 
determine  whether  defendant  made  the  alleged  misrepresenta- 
tions knowingly,  or  without  reasonable  ground  to  believe  in 
their  truth,  or  whether  the  statements  were  made  recklessly 
with  no  knowledge  of  the  truth.  You  will  also  determine 
whether  defendants  had  actual  knowledge  of  the  insolvency  of 
the  corporation,  and  its  ability  to  declare  a  dividend. 

Tf  the  jury  find  that  the  defendants  did  not  have  actual 
knowledge  that  the  dividend  was  fraudulently  declared,  it  will 
then  be  your  duty  to  consider  the  conduct  of  the  defendants 
as  directors  so  as  to  determine  whether  they  believed  that  the 
company  was  solvent  and  bad  the  right  to  declare  the  dividend, 
and  whether  such  belief  was  founded  on  reasonable  grounds. 


1566  INSTRUCTIONS  TO  JURY. 

If  you  find  that  they  had  actual  knowledge  of  the  alleged 
fraudulent  dividend,  there  would  then  be  no  occasion  to  con- 
sider the  grounds  of  belief  in  the  solvency  of  the  corporation. 

5.  Same — Fraudulent  dividend — Duties  of  directors  of  cor- 
poration— Care  required.  There  is  a  distinction  between  the 
care  required  of  directors  of  a  commercial  corporation  and  that 
exacted  of  a  banking  corporation,  due  to  the  difference  in  tin- 
character  of  the  business. 

Directors  of  a  corporation  are  what  are  termed  in  law  as 
mandatories;  that  is,  they  serve  without  compensation,  and  for 
this  reason  the  measure  of  their  responsibility  is  varied  and 
lessened.  Directors  who  serve  without  compensation  are  not 
expected  to  give  as  much  time,  care  and  attention  to  the  business 
of  the  corporation  as  if  they  were  being  paid  for  their  services. 

Directors  of  a  commercial  corporation  whose  services  are 
gratuitous,  and  whose  duties  are  to  attend  meetings  of  the 
board  of  directors,  and  to  hear  reports  of  officers  and  committees 
and  to  such  other  matters  relating  to  the  general  policy  of  the 
business  of  the  corporation,  owe,  and  are  bound  to  observe  such 
care  as  the  nature  of  the  business  reasonably  requires,  such  care 
as  directors  of  such  corporations  are  ordinarily  accustomed  to 
exercise  under  similar  circumstances  and  conditions. 

Ordinary  care  means  that  degree  of  care  which  persons  of 
ordinary  prudence  ordinarily  exercise  under  similar  circum- 
stances. 

Directors  of  such  corporations  from  the  very  nature  of  things 
can  not  give  such  time  and  personal  supervision  to  the  affairs 
of  the  corporation,  as  they  would  to  their  own  business,  but 
must  place  the  active  management  of  the  business  in  the  hands 
of  persons  specially  designated  for  that  purpose.  Directors  of 
corporations  in  such  cases  can  not  be  held  as  insurers  of  the 
fidelity  of  its  agents  whom  they  have  appointed,  and  can  not  be 
held  for  false  reports  and  representations  made  by  such  agents, 
or  for  false  entries  in  the  books  of  the  corporation,  unless  the 
failure  of  such  directors  to  learn  and  know  the  falsity  of  such 
reports,  entries  and  representations  are  the  consequence  of  or 
are  due  to  their  failure  to  observe  such  care,  prudence  and  fore- 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1567 

sight  as  would  ordinarily  be  necessary  to  be  observed  in  such 
cases,  or  as  would  be  reasonably  necessary  to  enable  them  to 
learn  and  know  the  truth  or  falsity  thereof.  Such  directors 
are  required  to  exercise  such  care  as  ordinarily  prudent  and 
diligent  men  would  exercise  in  order  to  reasonably  learn  the 
truth  of  any  reports  or  representations  made  by  their  officers. 

6.  Same — When  directors  not  chargeable  with  knowledge  of 
books.  The  control  and  custody  and  the  supervision  of  the  books 
of  accounts  of  the  corporation  may  be  properly  confided  to  the 
officers  and  agents  of  the  corporation,  by  the  directors.  And 
where  the  latter  have  acted  in  good  faith  and  with  ordinal 
diligence  in  the  general  supervision  of  the  affairs  of  the  company, 
and  have  been  unable  to  observe  the  true  condition  of  the 
corporation  as  shown  by  its  books  and  records,  they  are  not 
chargeable  with  knowledge  of  all  the  affairs  of  the  corporation, 
as  shown  by  its  books  and  papers;  they  are  not,  under  such 
circumstances,  charged  with  knowledge  of  the  falsity  of  entries 
in  the  books,  or  with  the  falsity  of  any  reports  falsely  made  to 
them  by  their  officers  and  agents.  Their  position  does  not 
require  them  to  devote  themselves  to  the  details  of  the  business, 
or  to  look  with  suspicion  on  the  conduct  of  their  officers  and 
agents ;  they  have  a  right  to  assume  that  they  are  honest  and 
faithful,  where  no  circumstances  transpire  to  excite  doubt  or 
suspicion.     *     *     * 

If  the  jury  finds  that  defendants  had  no  knowledge  of  the 
falsity  of  the  false  representations  and  false  dividends  alleged 
in  the  petition,  and  had  no  reasonable  ground  to  disbelieve  the 
truth  thereof  your  verdict  should  be  for  the  defendants,  etc. 

That  is,  if  you  find  that  they  had  no  knowledge  of  the  falsity 
of  the  representation,  and  had  on  the  contrary  reasonable  ground 
to  believe  in  the  solvency  of  the  corporation,  and  the  legality 
of  the  dividend,  and  in  the  truth  of  the  alleged  misrepresenta- 
tions, your  verdict  should  be  for  the  defendants. 

But  if  you  find  that  defendants  had  actual  knowledge  of  the 
falsity  of  the  dividends  as  well  as  of  the  alleged  misrepresenta- 
tions, or  if  they  had  no  such  knowledge,  and  had  no  reasonable 
pround  to  believe  in  the  truth  thereof  or  in  the  validity  of  the 
dividends   etc.,  your  verdict  Rhould  be  for  the  plaintiff. 


1568  INSTRUCTIONS  TO  JURY. 

If  you  find  that  there  was  any  fact  or  circumstance  concern- 
ing the  financial  condition  of  the  corporation  and  the  declaration 
of  the  dividend,  or  either  of  them,  which  would  be  sufficient  to 
put  a  reasonably  prudent  and  careful  man  acting  as  a  director 
of  a  corporation,  as  an  ordinarily  prudent  person  would  act 
under  the  circumstances,  or  such  as  would  cause  him  to  entertain 
a  doubt  or  suspicion  whether  the  corporation  could  lawfully 
declare  the  dividend,  this  should  be  taken  into  consideration 
with  other  facts  and  circumstances  in  determining  the  question, 
etc. 

7.  Same — Directors  voting  or  assenting  to  declaration  of 
dividend  liable,  when — The  statute  making  dividend  unlawful 
when.  Directors  of  a  private  corporation,  which  is  in  fact 
insolvent  and  which  has  no  surplus,  who  vote  for  or  assent  to 
the  declaration  of  a  dividend  on  the  capital  stock  thereof,  for 
the  fraudulent  purpose  of  deceiving  persons  having  no  knowl- 
edge or  information  of  the  financial  condition  of  such  company, 
and  to  induce  such  persons  to  purchase  stock  in  such  corpora- 
tion; or  who  by  false  representations  of  the  financial  condition 
of  such  corporation,  or  by  false  statements  of  its  financial  con- 
dition, and  of  the  fact  that  it  is  paying  dividends  on  its  capital 
stock,  thereby  induce  persons  to  subscribe  for  and  purchase  its 
stock  on  the  faith  of  such  fraudulent  act  or  false  representations 
are  liable  to  such  persons  if  they  rely  and  act  thereon  for  any 
loss  or  damage  thereby  sustained  by  them.  In  order  to  hold 
directors  of  such  corporation  liable  for  such  fraudulent  act  and 
false  representations,  it  must  be  proven  that  they  voted  for  or 
assented  to  the  declaration  of  such  dividend,  and  made,  or 
were  personally  implicated  in  making  or  holding  out  such  false 
representations,  and  that  such  directors  declared  and  published 
the  fact  of  such  dividend,  knowing  that  such  corporation  was 
then  insolvent',  or,  knowing  that  such  representations  were  false 
or  that  they  did  so  under  such  circumstances  as  will  warrant 
the  jury  in  finding  that  such  directors  by  the  exercise  of  ordinary 
care  and  prudence  would  have  known  that  such  corporation 
was  insolvent,  or  that  such  representations  were  false.      The 


FRAUD FALSE  REPRESENTATIONS,  ETC.  1569 

declaration  of  the  dividend,  and  the  representations  must  have 
been  made  with  the  intent  to  deceive,  and  that  plaintiff  must' 
have  been  deceived  by  them,  and  must  have  acted  and  relied 
upon  them. 

The  statutes  of  this  state  (sec.  )  provide  that  it  shall  be 

unlawful  for  the  directors  of  any  corporation  organized  under 
the  laws  of  this  state  to  make  dividends  except  from  the  surplus 
profits  arising  from  the  business  of  the  corporation.  In  the 
calculation  of  the  profits  previous  to  a  dividend,  interest  then 
unpaid,  although  due,  on  debts  owing  to  the  company,  shall  not 
be  included.  In  order  to  ascertain  the  surplus  profits  from 
which  alone  a  dividend  can  be  made,  there  shall  be  charged  in 
the  account  of  profit  and  loss,  and  deducted  from  the  actual 
profits  all  expenses  paid  and  incurred  both  ordinary  and  extra- 
ordinary, attending  the  management  of  the  affairs  and  the 
transaction  of  the  business  of  the  corporation.  There  sliall 
also  be  deducted  from  the  actual  profits,  interest  paid  or  then 
due  and  accrued  on  debts  owing  by  the  corporation.  There  shall 
also  be  deducted  from  the  actual  profits,  all  losses  sustained  by 
the  corporation,  and  in  the  computation  of  such  losses,  all 
debts  owing  by  the  corporation  shall  be  included  which  shall 
remain  due  without  prosecution,  and  no  interest  having  been 
paid  thereon  for  more  than  one  year,  or  which  judgment  shall 
have  been  recovered  and  shall  have  remained  for  more  than  two 
years  unsatisfied,  and  on  which  no  interest  shall  have  been  paid 
during  that  period;  and  no  such  corporation  shall  advertise  a 
larger  amount  of  capital  stock  than  has  actually  been  subscribed 
and  paid  in;  and  shall  not  advertise  a  greater  dividend  than 
what  has  been  actually  earned  or  credited  or  paid  to  its  stock- 
holders or  members. 

Hence,  I  charge  you  that  a  dividend  is  that  portion  of  the 
profits  and  surplus  funds  of  the  corporation  which  has  been 
actually  set  aparl  by  a  valid  resolution  of  the  board  of  directors 
for  distribution  among  the  stockholders  according  to  their 
respective  interests,  in  such  sense  as  to  become  segregated  from 
tin  property  of  the  corporation,  and  to  become  the  property  of 
the  shareholders  dist  ributively. 


1570  INSTRUCTIONS  TO  JURY. 

It  is  the  excess  of  its  cash  and  other  property  on  hand  over 
and  above  its  liabilities. 

The  assets  of  a  corporation  consist  of  the  stock  in  trade, 
cash,  and  all  available  property  belonging  to  the  company. 

8.  Same — Liability  of  directors  for  acts  of  manager  of  the 
corporation.  If  the  jury  find  that  P.,  manager  and  in  control  of 
the  business,  was  the  only  one  of  the  defendants  who  knew 
that  the  dividend  could  not  be  rightly  and  legally  declared  and 
paid,  and  that  he  misrepresented  the  books  and  condition  of  the 
company  to  the  other  directors,  and  the  other  defendants  relied 
upon  such  misrepresentations  in  good  faith,  and  could  not  by 
the  exercise  of  ordinary  care  and  prudence  have  discovered  the 
falsity  of  such  representations,  and  had  reasonable  grounds  for 
believing  that  the  dividend  could  be  rightly  and  legally  declared, 
then  they  could  not  be  held  responsible  for  any  fraudulent 
misrepresentations  made  by  P.  to  plaintiff,  and  your  verdict  in 
such  event  should  be  returned  only  against  P. 

But  if  you  find  that  P.  did  reveal  and  make  known  to  the 
other  directors  and  defendants  herein  the  true  condition  of  the 
books  and  of  the  details  of  the  entries  therein  so  far  as  was 
necessary  to  enable  them  to  know  whether  the  dividend  could 
or  could  not  be  rightly  and  legally  declared  and  paid;  and  if 
you  are  of  the  opinion  that  the  defendants,  by  the  exercise  of 
ordinary  care,  considering  their  knowledge  and  intelligence, 
could  have  known  whether  such  dividend  could  be  rightly  and 
legally  declared  and  paid;  and  if  they  failed  to  observe  ordinary 
care  and  prudence  under  the  circumstances,  and  hence  were 
without  reasonable  grounds  for  believing  that  such  dividend 
could  be  paid,  but  that  they  nevertheless,  dfd  vote  to  declare 
and  pay  the  dividend,  your  verdict  in  such  case  should  be 
against  all  the  defendants  to  whom  P.  revealed  the  condition  of 
the  company,  and  who  voted  to  declare  the  unlawful  dividend, 
if  you  find  they  did  so,  provided  there  was  a  common  design 
and  purpose  on  the  part  of  all  the  defendants  to  increase  the 
assets  of  the  company  by  the  sale  of  the  stock  after  the  payment 
of  the  dividend. 


FRAUD FALSE    REPRESENTATION,    ETC.  1571 

8.  Sanu — Misrepi'esentation  to  be  fraudulent  must  be  material 
and  relied  upon.  A  misrepresentation  to  be  fraudulent  must  be 
as  to  a  material  matter  of  fact ;  it  must  be  fraudulent  and  false 
and  must  be  relied  upon  by  the  person  to  whom  it  is  made,  and 
it  must  constitute  an  inducement  to  enter  into  a  transaction, 
must  work  injury  or  result  directly  in  damages  to  the  person 
relying  thereon,  and  the  person  to  whom  such  misrepresentation 
is  made  must  have  a  right  to  rely  thereon. 

If  all  these  circumstances  concur,  then  there  is  fraud,  and 
the  party  thus  injured  is  entitled  to  relief. 

If  the  defendants  fraudulently  declared  a  false  dividend,  and 
fraudulently  made  false  and  fraudulent  misrepresentations  or 
statements  to  plaintiffs  as  claimed,  but  if  the  plaintiff  did  not 
rely  on  them  in  accepting  the  stock,  but  instead  sought  and 
obtained  information  concerning  the  financial  condition  of  the 
company  and  the  statements  and  facts  with  reference  thereto 
from  other  sources,  and  then  on  his  own  judgment  concluded 
to  enter  into  the  contract  for  the  purchase  of  the  stock,  and  if 
he  took  his  chance  as  to  the  real  condition  of  the  company  and 
the  real  value  of  the  stock,  then  he  may  not  recover. 

But  if  plaintiff  did  rely  upon  such  representations,  and  he 
had  a  right  to  rely  upon  them ;  if  he  acted  upon  the  faith  of 
them  instead  of  upon  his  own  judgment  or  information  obtained 
from  other  sources,  and  he  was  damaged  thereby,  he  may  recover 
notwithstanding  he  may  have  made  inquiries  and  obtained 
information  from  other  sources. 

9.  Same — Measure  of  damages.  The  measure  of  damages  is 
the  difference  between  the  value  of  the  stock  as  it  was  represented 
to  be,  and  its  actual  intrinsic  value  at  the  time  of  the  purchase 
of  it  by  plaintiff,  which  sum  you  should  allow  with  interest,  etc. 

If  the  stock  was  worthless  when  plaintiff  bought  it,  the  price 
it  was  then  represented  to  lie  worth,  with  interest,  is  the  measure 
of  damages.  If  on  the  other  hand,  the  stock  then  had  some 
intrinsic  value,  that  value  should  be  deducted  from  the  value 
it  was  represented  to  have.1 

i  Converse  v.  Yaeger,  Franklin    Co.   Com.  Tloas,   Kinkead,  J.     Affirmed  by 
Circuit  and  Supreme  Courts. 


CHAPTER   CIII. 
GAMBLING   CONTRACTS. 

SEC.  SEC. 

1806.  Contracts  for  sale  of  grain  to       1808.  Action    for   money    lost   by    a 

be     delivered    at    future  person  dependent  for  sup- 

day,  port  upon  the  person  los- 

1807.  Fact  that   one  party   acts   as  ing  money. 

commission  merchant 
does  not  change  relation. 

Sec.  1806.     Contracts  for  sale   of  grain  to  be   delivered  at 
future  day. 

Where  transactions  on  their  face  are  purchases  and  sales  of 
commodities  by  one  party  of  and  to  another,  the  burden  of 
proof  rests  upon  him  who  asserts  their  illegality,  on  the  ground 
that  they  are  gambling  transactions,  to  prove  by  a  preponderance 
of  the  testimony  that  they  are  in  fact  gambling  transactions; 
and  to  establish  this,  the  facts  and  circumstances  must  be  so 
convincing  and  strong  that  no  other  reasonable  conclusion  can 
be  drawn  from  them. 

Contracts  are  not  presumed  to  be  illegal;  on  the  other  hand, 
they  are  presumed  to  be  legal  until  the  contrary  clearly  appears. 
A  contract  for  the  sale  of  grain  or  other  commodity,  to  be 
delivered  at  a  future  day,  is  not  invalidated  by  the  fact  that  it 
was  to  be  delivered  at  a  future  day,  or  by  the  additional  fact 
that  at  the  time  of  the  making  of  the  contract  the  vendor  had 
not  the  goods  in  his  possession,  or  by  the  additional  fact  that 
at  the  time  he  had  not  entered  into  any  contract  to  buy  or 
procure  the  goods,  nor  by  the  further  fact  that  at  the  time  he 
had  no  reasonable  prospect  of  procuring  them  for  delivery, 
according  to  the  tenor  of  the  contract.  In  such  case,  if  either 
party  to  the  contract  has  the  right  to  compel  a  delivery  or 
receipt  of  the  goods,  it  is  a  valid  contract,  although  the  parties 
1572 


GAMBLING   CONTRACTS.  1573 

thereto  thereafter  settle  and  agree  to  close  up  the  transaction 
by  a  payment  of  differences.  Nor  does  the  statute  of  Ohio 
apply  to  sales  of  grain  or  other  goods  for  future  delivery,  where 
the  only  option  is  as  to  the  time  of  delivery,  within  certain 
limits.  The  intent  of  that  act  is  to  prohibit  transactions  which 
are  purely  options  to  buy  or  sell,  where  there  is  no  intention, 
but  the  contrary,  upon  the  part  of  the  parties  ever  to  deliver  or 
receive  and  pay  for  the  goods.  It  should  appear,  however,  in 
order  to  uphold  a  contract  for  the  sale  and  delivery  of  grain  at 
a  future  day  or  time  for  a  price  stated,  that  it  was  the  purpose 
of  the  parties  that  there  should,  in  fact,  be  a  delivery  and  receipt 
of  the  grain.  If  made  with  a  bona  fide  intention  to  deliver  the 
grain  and  to  receive  and  pay  for  the  same,  it  is  valid  in  law. 

(a)     Intention  of  the  parties  governs. 

It  is  the  intention  of  the  parties  at  the  time  the  contract  is 
entered  into  that  gives  character  to  the  same.  In  other  words,  if 
is  the  key  to  the  real  transaction  by  winch  it  should  be  tested. 
What  was  the  intention  of  the  parties  to  this  contract  at  the  time 
it  was  made  in  respect  to  an  actual  delivery  and  receipt  of  the 
goods  contracted  for?  An  understanding  between  the  vendor 
and  vendee,  at  the  time  the  contract  is  made,  that  the  goods  shall 
not  be  delivered  or  received,  but  merely  to  pay  and  receive  the 
difference  between  the  price  agreed  upon  and  the  market  price  at 
the  time  named  for  its  delivery,  brings  the  transaction  within 
the  statute,  and  it  is  void.  Nor  does  it  matter  what  form  the 
parties  gave  to  their  contracts.  They  may  be  painstaking  and 
legally  exact  in  this  respect  On  its  face  the  contract  may  be, 
in  all  particulars,  legitimate  and  regular.  As  the  Supreme  Court 
of  the  United  States  declared  in  the  case  of  Irvine  v.  Willard, 
"Gambling  is  none  the  less  such  because  it  is  carried  on  in 
the  form  or  guise  of  legitimate  trade."  And,  in  the  language 
of  another  high  authority,  I  charge  you  that  however  formal 
and  correct  a  contract  may  be  on  its  face,  yet  if  this  formality 
is  resorted  to  as  a  mere  disguise,  and  the  real  under-standing  and 
agreement  between  the  parties  thereto  at  the  time  it  was  entered 
into  was  that  if  should  not  be  performed  according  to  its  tenor, 


1574  INSTRUCTIONS  TO  JURY. 

and  both  the  parties  do  not  intend  an  actual  delivery  of  the 
article  bargained  for,  but  merely  to  settle  the  differences  between 
the  price  agreed  to  be  paid  for  the  article  and  the  market  price 
at  the  time  fixed  in  the  contract  for  its  delivery,  it  is  a  gambling 
transaction  within  the  meaning  and  intent  of  our  statute,  and 
is  also  against  public  policy  and  wholly  void. 

The  secret  intention  of  one  of  the  parties  to  a  contract  that 
the  grain  shall  not  be  delivered  and  received,  but  that  settle- 
ment shall  be  made  as  already  stated,  is  not  sufficient  to  render 
the  contract  invalid;  it  must  be  the  mutual  understanding  and 
agreement  of  both  the  parties  thereto.  In  short,  I  state  it  this 
wTay :  If  the  intent  and  purpose  of  both  parties  to  the  contract 
is  purely  and  nothing  else  but  to  wager  on  the  rise  or  fall  of 
the  price  of  grain,  and  no  delivery  or  receipt  of  the  same  is  to 
be  had,  and  not  to  deal  in  it  bona  fide,  the  transaction  is  a 
gambling  affair,  and  is  utterly  void.1 
i  Lester  v.  Buell.  40  O.  S.  240. 

Sec.  1807.     Fact  that  one  party  acts  as  commission  merchant 
does  not  change  relation. 

If  you  find  that,  in  pursuance  of  directions  from  the  defend- 
ants, or  from  their  agent  authorized  in  the  premises,  the  plain- 
tiff did,  in  his  own  name,  make  bona  fide  sales  and  purchases 
for  future  delivery  for  defendants,  by  which  the  parties  to 
whom  the  plaintiff  made  such  sales,  or  from  whom  he  made 
such  purchases,  had  a  right  to  compel  delivery  of  the  grain 
bought  and  sold,  or  enforce  a  payment  of  damages  for  breach 
of  contract,  such  transaction  is  not  illegal  as  between  plaintiff 
and  defendants,  although  defendants  never  intended  to  deliver 
or  receive  the  grain  sold  or  bought,  and  although  the  plaintiff 
knew  at  the  time  of  such  intention.  If,  under  the  proof,  you 
find  the  transactions  valid  as  between  the  defendants  and  their 
vendors  or  vendees,  such  transactions  are  valid  as  between 
defendants  and  their  broker,  commission  merchant,  or  agent. 
And  if  you  find  in  this  case  that  plaintiff  acted  merely  as  defend- 
ant's agent,  whether  he  assumes  to  make  the  purchase  or  sale 


GAMBLING  CONTRACTS.  1575 

as  a  commission  merchant  only,  will  not  alter  the  relation  of  the 
parties,  and  whatever  the  transactions  were,  whether  they  were 
valid  or  not,  plaintiff  can  not  recover  for  his  commission,  and 
for  the  money  advanced  by  him  for  the  defendants  under  such 
circumstances  that  an  agreement  to  repay  will  be  implied. 

If  you  find  the  transactions  illegal  and  void,  under  the  instruc- 
tions which  have  been  given  you,  and  you  further  find  that  the 
plaintiff  acted  as  agent  in  these  transactions,  and  knew  or  had 
reason  to  know  all  about  the  illegal  character  of  the  same,  and 
knowingly  assisted  the  defendants  in  the  advance  of  the  money, 
and  was  acting  in  such  agency  to  bring  about  the  gambling 
transactions  in  which  he  advanced  the  money,  and  sought 
thereby  to  keep  up  and  aid  such  transactions,  and  advised 
and  procured  the  same  to  be  done  by  himself  or  by  Mr.  C,  and 
so  acted  in  the  premises  as  to  be  affected  by  the  immoralities 
of  the  transaction,  he  can  not  recover.  If  he  advised,  aided  and 
procured  gambling  transactions  to  be  entered  into  by  the  defend- 
ants in  these  alleged  grain  deals,  and  was  acting  by  himself  or 
agents  in  carrying  them  on,  and  did  it  on  purpose  to  gamble 
in  grain  in  this  way,  and  obtained  from  the  defendants  their 
money  in  illegal  and  gambling  affairs,  he  is  a  principal  in  the 
commission  of  all  the  offenses.1 
i  Lester  r.  P>uell,  40  O.  R.  240.  ami  eases  cited. 

Sec.  1808.  Action  tor  money  lost  by  a  person  dependent  for 
rapport  upon  the  person  losing  money. 
You  have  heard  the  evidence  in  this  ease,  and  the  arguments 
of  counsel.  It  now  becomes  the  duty  of  the  court  to  charge  yon 
as  to  the  law  which  will  govern  you  in  your  deliberations.  All 
questions  of  fact  are  for  the  jury,  that  is  your  exclusive  province. 
It  is  the  province  of  the  court  to  charge  you  as  to  the  law  of  the 
case,  and  you  will  be  governed  by  the  law  given  you  by  the  court, 
whether  it  may  agree  with  the  individual  opinion  of  any  one  or 
more  of  you  or  not.  Therefore,  in  your  jury  room  no  one  will 
advance  any  proposition  of  law  at  variance  with  thai  given  you 
by  the  court. 


1576  INSTRUCTIONS  TO  JURY. 

The  plaintiff  sues  the  defendant  here  asking  for  a  judgment 

for  $ lost  by  her  son,  she  claiming  that  it  was  lost  by  him  in 

gambling,  together  with  exemplary  damages  in  the  sum  of  $ , 

making  a  total  of  $ ,  for  which  she  asks  judgment  at  your 

hands. 

The  statute  involved  in  this  case,  sec.  5967,  provides,  in  sub- 
stance, as  follows:  That  a  person  who  loses  any  money  at 
gambling  may  recover  the  same,  or  any  person  who  is  dependent 
for  support  upon  such  person  may  sue  for  and  recover  from  the 
person  receiving  the  money  any  such  money  that  is  so  lost. 

The  petition  in  this  case  alleges  that  the  plaintiff  was  entitled 
to  the  earnings  of  her  son.  The  court,  however,  instructs  the 
jury  that  as  the  son  was  at  the  time  complained  of  not  a  minor, 
but  of  full  age,  that  she  is  not  entitled  to  recover  on  that  ground, 
that  she  can  only  recover,  if  at  all,  upon  the  ground  that  she 
was  entitled  to  the  support  of  her  son  under  the  statute. 

The  court  can  hardly  interpret  the  meaning  of  this  statute 
which  reads  that  "A  person  dependent  for  support  upon  the 
person  so  losing  the  money,"  more  definitely  and  certain  than 
the  language  itself  imports.  Counsel  in  argument  have 
interpreted  the  statute  as  embracing  one  who  is  entitled  to 
support  in  any  degree.  The  language  is  plain,  and  the  court 
will  not  undertake  to  determine  its  meaning  any  further  than 
its  language  indicates  to  the  ordinary  intelligent  mind.  It  is  a 
simple  question  of  fact  for  the  jury  to  determine  from  the 
evidence  whether  plaintiff  was  in  fact  dependent  for  her  support 
upon  her  son ;  not  necessarily  whether  there  was  a  contract,  but 
whether  plaintiff  had  other  means  of  support,  from  her  own 
exertions  or  from  her  own  means ;  whether  the  son  did  or  did 
not  at  and  during  and  prior  to  the  times  mentioned  in  the 
petition  actually  support  the  plaintiff,  or  whether  he  did  not'. 
This  is  the  question  of  fact  which  lies  at  the  basis  of  this  case, 
and  it  is  your  sole  province  to  decide  it. 

To  warrant  a  recovery  on  behalf  of  the  plaintiff  she  must 
establish  by  a  preponderance  of  the  evidence  that  she  was  at 
the  time  mentioned  in  her  petition,  and  at  and  prior  thereto, 


GAMBLING  CONTRACTS.  1577 

dependent  upon  her  son,  whom  it  is  claimed  lost  money,  for  her 
support.  If  you  find  that  plaintiff  was  not  at  the  time  stated 
in  the  petition  dependent  upon  her  son  for  support,  that  would 
be  an  end  to  the  ease  and  you  need  not  further  consider  it. 

The  jury  must  find  that  plaintiff  was  dependent  upon  her  son 
for  support,  and  that  he  lost  the  money  by  gambling,  which 
finding  must  be  supported  by  a  preponderance  of  the  evidence, 
that  is  by  the  greater  weight  thereof.  If  the  evidence  is  evenly 
balanced  between  the  parties,  there  is  not  then  a  preponder- 
ance thereof,  and  in  such  case  your  verdict  should  be  for  the 
defendant. 

The  jury  is  the  sole  judge  of  the  credibility  of  the  witnesses. 
The  court  has  nothing  to  do  with  the  question  of  credibility  of 
witnesses  except  to  point  out  matters  which  the  jury  may 
consider.  You  may  adopt  such  tests  as  in  your  judgment  seem 
best  applicable  to  the  facts  and  circumstances  developed  in  the 
evidence. 

Before  the  plaintiff  may  recover  in  this  case  she  must  prove 
to  you  that  her  son  did  lose  some  money  at  gambling.  If  he 
did  not  lose  money  at  the  time  and  place  alleged  by  her,  she 
may  not  recover.  The  law  places  the  burden  of  proving  this 
upon  the  plaintiff,  which  she  must  do  by  the  greater  weight  of 
the  evidence  as  before  explained.  In  other  words,  you  are  not 
permitted  to  conjecture  or  guess  wThat  his  losses,  if  any,  were, 
but  it  must  be  proven  to  you  by  the  greater  weight  of  the 
evidence.  Verdicts  must  be  rendered  upon  sworn  testimony 
which  proves  the  material  allegation  of  the  petition  by  the  degree 
of  evidence  already  stated. 


CHAPTER   CIV. 
GIFT. 


SEC.  SEC. 

1809.  Gift  inter  vivos.  1811.  Retaining  dominion  over  gift. 

1810.  What  constitutes  valid  gift.  1812.  Gift    of    mortgage    or    money 

represented  by  mortgage. 


Sec.  1809.     Gift  inter  vivos. 

A  gift  inter  vivos — between  the  living — such  as  is  claimed 
here  is  the  act  of  the  owner  of  property  of  transferring  its 
ownership — its  title  and  possession  to  another.  It  is  a  contract 
which  takes  place  by  the  mutual  consent  of  the  giver,  who  divests 
himself  of  the  thing  given  in  order  to  transmit  the  title  to  the 
donee  gratuitously,  and  the  donee  is  the  person  to  whom  it  is 
given,  who  actually  accepts  and  acquires  the  legal  title  to  the 
subject  of  the  gift,  whatever  it  may  be — in  this  case  being  a 
claim  of  money  paid  upon  a  mortgage  upon  real  estate,  the 
title  to  which  stood  in  the  name  of  the  plaintiff  and  her  husband 
at  the  time  of  the  payment. 

Sec.  1810.     What  constitutes  valid  gift. 

To  constitute  a  valid  gift,  the  purpose  of  the  donor — the 
giver — to  make  the  gift  must  be  established  by  the  requisite 
degree  of  evidence — that  is,  a  preponderance  of  the  evidence 
the  same  as  in  ordinary  civil  cases,  and  the  gift  must  be 
complete  by  either  actual,  constructive  or  symbolic  delivery, 
without  power  of  revocation  on  the  part  of  the  donor  or  the 
giver.  A  clear  and  unmistakable  intention  on  the  part  of  the 
donor  or  giver  to  make  a  gift  of  his  property  is  an  essential 
requisite  of  the  gift.  Whether  J.  B.,  Sr.,  intended  to  make  a 
1578 


GIFTS.  1579 

gift  as  claimed,  or  whether  he  did  not  so  intend  is  to  be 
gathered  from  all  the  evidence,  and  may  or  may  not,  as  the 
judgment  of  the  jury  suggests,  be  gathered  from  his  declarations 
or  from  his  acts,  whatever  they  were,  appearing  in  the  evidence, 
if  indicative  of  the  fact  of  having  made  a  gift  or  not. 

The  intention  to  give  must  be  consummated  and  carried  into 
effect  by  acts  which  the  law  requires  to  divest  the  donor  and 
invest  the  donee  with-  the  right  of  the  property — complete  and 
unconditional  delivery  is  essential  to  the  perfection  of  such  a 
gift ;  if  the  donor  or  giver  retains  dominion  over  the  subject  of 
the  gift,  or  if  he  retains  a  chance  to  withdraw,  or  to  change  his 
mind,  there  can  be  no  legal  and  perfect  donation. 

Sec.  1811.     Retaining  dominion  over  gift. 

Now  when  you  are  considering  that  rule  as  to  retaining  domin- 
ion over  the  subject  of  the  gift,  of  course  the  jury  must  take 
into  consideration  the  nature  and  character  of  the  gift  as 
claimed — in  this  case  being  money  paid  upon  the  mortgage,  the 
mortgage  having  been  cancelled  on  the  paper  itself,  and  a  record 
of  it  having  been  made  in  the  recorder's  office. 

Now  as  to  this  matter  of  retaining  dominion  over  the  subject 
matter,  the  court  will  instruct  you  later  on  as  to  the  rights  of 
J.  B.  Sr.,  in  the  event  that  you  find  from  the  evidence  that  he 
did  not  intend  to  make  a  gift. 

The  delivery  required  must  be  such  a  one  as  the  nature  and 
character  of  the  thing  claimed  to  be  given  shows  it  to  be  capable 
of.  These  are  the  essentials  of  a  gift  inter  vivos,  or  among  the 
living. 

Sec.  1812.     Gift  of  mortgage  or  money  represented  by  mort- 
gage. 

The  money  having  been  paid  by  B.  to  the  building  and  loan 
company  when  the  title  to  the  property  stood  in  the  name 
of  plaintiff  and  her  husband,  and  the  mortgage  having  been 
cancelled  on  the  mortgage  itself  and  upon  the  records  of  the 
recorder's  office,  the  jury  will  determine  from  these  acts,  and 


1580  INSTRUCTIONS  TO  JURY. 

any  declarations  which  the  deceased  may  have  made,  and  all 
the  evidence,  what  the  fact  was,  whether  or  not  there  was  a  gift 
or  whether  it  was  not  a  gift;  but  I  may  say  that  absolute 
certainty  is  not  possible,  nor  is  it  required  in  the  determination 
of  the  facts  by  the  jury.  The  jury  are  allowed  by  law  to  deal 
in  what  may  be  called  probabilities.  The  question  is  whether 
it  was  probably  a  gift.  If  the  evidence  is  evenly  balanced 
between  the  parties,  of  course  the  plaintiff  must  fail  upon  the 
question  of  the  gift.  If  it  was  the  intention  of  J.  B.  Sr.,  at  the 
time  of  paying  the  amount  of  the  mortgage,  as  claimed  by 
plaintiff,  the  payment  and  cancellation  thereof  on  the  mortgage 
and  on  the  record,  would,  in  such  event,  be  a  sufficient  construc- 
tive delivery  of  the  subject  of  the  alleged  gift.  Now  the  court- 
is  not  giving  any  opinion  upon  that  matter  at  all,  because  it  is 
left  entirely  with  the  jury,  and  the  jury  must  deduce  from  all 
of  the  circumstances  whether  or  no  there  was  an  intention  to 
make  a  gift,  the  jury  being  the  exclusive  judges  of  the  fact.  The 
court  merely  states  that  if  you  should  find  from  the  evidence  that 
it  was  his  intention  to  make  the  gift  at  the  time,  then  the  court 
states  as  matter  of  law,  that  there  would  be  a  sufficient  delivery 
by  the  cancellation  upon  the  mortgage  and  upon  the  record 
without  anything  further  being  done.  If,  however,  he  paid  this 
money  on  the  mortgage  without  intending  to  make  a  gift  to 
the  plaintiff  as  claimed,  but  because  of  the  admitted  fact  here 
that  he  held  a  second  mortgage  on  the  property,  and  that  he 
paid  the  building  and  loan  mortgage  to  protect  his  second 
mortgage,  but  under  a  mistake  of  his  legal  rights  in  the  matter 
of  preserving  the  lien  of  the  mortgage  for  his  own  protection, 
he  failed  to  take  such  steps  that  would  on  its  face  protect  him 
in  that  matter,  and  if  he  did  not  intend  in  fact  to  cancel  the 
lien  of  the  mortgage  but  expected  to  retain  it  and  preserve  it 
for  his  own  protection,  but  failed  to  do  so  in  a  legal  manner, 
in  such  event  he  would,  in  law,  be  entitled  to  be  subrogated  in 
equity  for  the  rights  of  the  lien  of  the  mortgage,  and  in  such 
case  there  would  of  course  be  no  gift. 


GIFTS.  1581 

Now  it  is  a  question  for  the  jury  to  determine  what  his  inten- 
tion was,  whether  he  did  intend  to  pay  that  to  protect  his  own 
interest,  and  whether  he  did  make  the  mistake ;  whether  he  did 
not  intend  to  have  the  mortgage  cancelled,  and  whether  he 
intended  to  preserve  the  lien.  Those  questions  are  entirely 
within  the  province  of  the  jury  to  determine.1 
i  Breen  v.  Breen,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 


CHAPTER   CV. 
GRAND  JURY. 

SEC.  SEC. 

1813.  A   complete   charge   to   grand       1818.  Special   charge   as   to   bucket- 

jury.         [Other     sugges-  shops — Gambling  in  mar- 

tions.]  gins. 

1814.  Introductory.  1810.  Character  of  evidence  to  war- 

1815.  Origin  of  institution  of  grand  rant  indictment. 

jury.  1820.  Legal  evidence  only  to  be  con- 
)816.  Grand  jury  to  institute  crim-  sidered. 

inal   proceedings  as  well  1821.  Looking  at  guilt  or  innocence. 

ae  to  guard   against  un-  1822.  Scope  of  inquiry. 

just  accusations.  1823.  Secrecy  must  be  observed — 
1817.  Oath,    and    responsibility    im-  Another  form. 

posed  thereby. 

Sec.  1813.    A  concise  charge  to  the  grand  jury. 

Gentlemen  of  the  Grand  Jury — You  have  been  summoned 
here  to  determine  whether  men  should  be  accused  with  crime. 
It  is  the  duty  of  the  court  to  instruct  you  respecting  your  duty. 
Of  course  it  is  needless  for  me  to  say  that  you  should  observe  the 
instructions. 

It  has  long  been  a  cardinal  principle  of  law  that  no  one  shall 
be  put  on  trial  for  a  capital  or  infamous  crime  until  he  has 
been  indicted  by  a  grand  jury.  In  earlier  times  the  grand 
jury  often  stood  as  a  barrier  against  unjust,  persecution.  So 
should  it  now  be  the  means,  not  only  of  bringing  to  trial  persons 
accused  of  crime  upon  just  grounds,  but  also  to  protect  persons 
from  unfounded  accusations  whether  presented  by  legal  officers 
or  by  partisan  passion  or  private  enmity. 

There  is  no  public  purpose  subserved  in  indicting  men,  when 
it  appears  to  you  that  there  can  be  no  conviction  according 
to  the  proof. 

It  is  important  that  accusations  be  made  against  those 
appearing,  upon  an  honest  and  impartial  examination,  to  be 
1582 


GRAND  JURY.  1583 

probably  guilty  of  the  commission  of  a  crime.  It  is  equally 
essential  that  unjust  or  unfounded  accusations  be  not  made 
against  anyone. 

The  oath  administered  to  you  contains  some  essential  prin- 
ciples which  should  control  you  in  your  deliberation.  The 
taking  of  an  oath  by  a  grand  juror  means  that  he  shall  observe 
it.  A  juror  who  does  not  honestly  and  conscientiously  keep 
his  oath  can  not  be  a  worthy  citizen.  The  jury  and  judge 
constitute  the  court,  and  the  duties  resting  upon  each  must  be 
properly  performed. 

Your  oath  contains  an  appeal  to  your  conscience  that  you 
keep  secret  what  takes  place  in  your  presence  in  the  grand 
jury  room.  The  purpose  of  this  is  plain.  You  may  have 
accusations  brought  before  you,  which,  after  examination  you 
will  find  unfounded,  and  return  no  indictment.  The  laws  of 
decency  demand  that  you  shall  not  individually  slander  your 
brethren.  Then  how  much  stronger  should  be  the  seal  on  your 
tongue  in  respect  to  what  goes  on  in  the  grand  jury  room. 

It  is  your  imperative  duty,  gentlemen,  to  keep  rigidly  in 
confidence  the  counsel  of  the  prosecuting  attorney,  his  assistants, 
your  fellow7  jurors  and  yourselves,  until  you  are  compelled  in  a 
court  of  justice  to  reveal  it.  You  are  only  allowed  to  make 
disclosures  when  called  upon  in  a  court  of  justice,  which  seldom 
ever  occurs.  The  injunction  of  secrecy  demands  that  you  shall 
not  communicate  to  any  person  what  has  been  done  in  the  grand 
jury  room.  Tt  means  that  you  are  not  at  liberty  to  tell  any 
person  what  has  been  said  or  done  in  the  grand  jury  room, 
either  by  the  prosecuting  attorney,  or  by  his  assistants,  or  by 
your  fellow  jurors,  or  by  yourselves.  It  would  be  as  much  of  a 
violation  of  your  oath  if  you  should  permit  anyone  to  question 
you  about  the  proceedings  in  the  grand  jury  room,  as  it  would 
be  to  voluntarily  impart  any  information. 

You  should  not  permit  anyone  to  suggest  or  ask  you  to  vote 
for  or  against  the  indictment  of  anyone.  If  anything  of  that 
kind  should  occur,  report  it  to  the  court.  This  is  the  only  part 
of  our  legal  machinery,  in  the  administration  of  justice  where 


1584  INSTRUCTIONS  TO  JURY. 

absolute  secrecy  is  required.  Accusing  a  person  of  a  crime 
which  may  blast  his  reputation  and  cover  him  with  ignominy, 
is  a  grave  matter,  and  should  not  be  done  except  for  sufficient 
reasons  and  for  the  most  momentous  cause.  The  chief  purpose 
of  the  grand  jury  is  to  have  accusations  of  crime  privately 
examined,  so  as  to  ascertain  whether  there  is  a  probability  of 
their  truth,  before  giving  them  publicity  in  the  form  of  an 
indictment.  We  find  sometimes  a  class  of  persons  who  are 
eager  to  start  criminal  prosecutions  upon  inadequate  evidence. 
Sometimes  that  may  be  from  honest  motives;  sometimes  from 
base,  malicious  and  corrupt  motives.  If  the  grand  jury  were  not 
required  to  keep  secret  their  deliberations  and  what  occurs  in 
the  grand  jury  room  it  is  clearly  evident  that  reputations  may 
be  injured  or  damaged. 

There  is  also  reason  for  the  obligation  of  secrecy,  which  is 
that  it  may  prevent  anyone  accused,  from  escaping  justice.  If 
it  were  possible  for  anyone  who  is  likely  to  be  charged  by  the 
grand  jury  with  a  criminal  offense,  to  learn  or  know  of  the 
investigation  by  the  grand  jury  or  to  know  that  they  are  to  be 
indicted,  opportunities  would  be  afforded  for  their  escape. 

You  understand  that  all  charges  of  criminal  offenses  do  not 
arise  before  the  examination  occurs,  but  that  the  grand  jury 
itself  may  initiate  investigation,  and  because  of  this  fact,  it  is 
important  that  the  rule  of  secrecy  be  observed.  If  this  obliga- 
tion of  secrecy  were  not  enjoined  by  law,  and  grand  jurors  did 
not  keep  it,  there  would  be  another  way  in  which  justice  might 
be  defeated.  It  would  enable  friends  of  those  who  were  accused 
before  the  grand  jury,  to  bring  all  possible  influences  to  prevent 
the  indictment. 

It  is  therefore,  obvious,  gentlemen  of  the  jury,  upon  these 
considerations,  that  this  duty  of  secrecy  although  foreign  to  the 
law  and  its  proceedings  generally  is  absolutely  necessary  in  the 
investigations  of  the  grand  jury,  for  the  protection  of  the 
innocent  and  for  the  punishment  of  the  guilty.  It  is  not  an 
idle  obligation  that  you  take  to  keep  these  matters  secret. 

Your  oath  also  requires  that  you  shall  present  no  person 
through  malice,  hatred,  or  ill  will.     But  at  the  same  time  it  is 


GRAND  JURY.  1585 

your  duty  to  not  fail  to  indict  anyone  who  ought  to  be  indicted, 
from  either  fear,  affection,  reward  or  hope  thereof.  You  must  in 
all  of  your  deliberations  and  presentments,  present  so  far  as 
you  are  able,  the  absolute  truth  to  the  best  of  your  skill  and 
understanding.  You  must  lay  aside  all  feelings  and  prejudices 
which  might  in  any  way  interfere  with  you  in  the  strict  and 
impartial  performance  of  your  duty  as  a  grand  juror.  No  grand 
juror  has  the  right  to  permit  his  understanding  or  judgment  to 
be  influenced  or  controlled  by  any  sort  of  feeling  foreign  to 
the  matter  in  question ;  by  any  religious,  social,  or  political  bias, 
or  personal  feeling.  No  grand  juror  has  a  right  to  start  a 
criminal  prosecution  to  aid  or  defeat  either  side  of  a  political, 
religious  or  personal  controversy.  Neither  has  any  member  of 
a  grand  jury  a  right  to  bring  about  an  indictment  of  anyone 
for  the  purpose  of  gratifying  his  malice  or  the  malice  or  hatred 
of  any  of  his  friends.  If  it  should  happen  that  any  member 
of  a  grand  jury  should  so  violate  his  duties  as  to  transgress 
these  rules,  it  would  degrade  the  high  character  of  the  grand 
jury. 

The  prosecuting  attorney  and  his  assistant's  are  constituted 
by  law  the  representatives  of  the  state  in  all  criminal  prose- 
cutions. It  is  their  privilege  and  their  duty  to  be  present 
with  the  grand  jury  in  its  room,  to  present  the  accusations,  to 
give  information  with  relation  to  any  matter  that  may  be 
cognizable  by  the  jury,  to  give  advice  touching  any  matter  of 
law  when  required,  and  to  examine  the  witnesses  when  they 
deem  it  necessary.  It  is  their  duty  to  instrud  you  touching 
legal  matters  with  the  utmost  fairness  and  candor,  remembering 
that  they  are  in  charge  of  a  tribunal  before  whom  only  one  side 
of  a  ease  can  be  fully  heard.  It  is  your  duly  to  follow  their 
instructions  on  matters  of  law,  unless  you  are  instructed  to 
the  contrary  by  the  court.  It  is  as  much  the  duty  of  the 
prosecuting  attorney  to  safely  guide  you  in  matters  of  law, 
pertaining  to  matters  of  evidence  especially,  as  it  is  of  the  court. 
Hearsay  evidence  is  too  unsatisfactory  kind  of  evidence,  and 
therefore  is  excluded  in  courts.     It  would  be  more  unjust  and 


1586  INSTRUCTIONS  TO  JURY. 

harmful  to  regard  or  act  upon  this  kind  of  testimony  in  the 
grand  jury  room  than  elsewhere.  It  will  be  the  duty  of  the 
prosecuting  attorney  to  advise  you  in  such  matters.  No  one 
but  the  prosecuting  attorney,  or  his  assistant,  has  a  right  to 
be  present  during  your  deliberations  after  the  testimony  is 
taken. 

You  are  the  sole  judges,  however,  upon  all  the  evidence  that 
may  be  offered  in  support  of  any  accusations  of  crime.  Neither 
the  prosecuting  attorney  nor  his  assistants  have  the  right  to 
advise  you,  or  to  hint  or  to  intimate  how  you  shall  decide  a 
question  of  fact.  In  the  conduct  of  the  examination  of  witnesses 
however,  it  should  be  the  purpose  of  the  prosecuting  attorneys 
and  their  assistants  together  with  the  action  of  your  body,  to 
reject  and  not'  consider  the  incompetent  testimony.  The  law 
makes  it  the  duty  of  the  prosecuting  attorney  merely  to  give 
you  information,  to  interrogate  wittnesses,  and  to  give  advice 
upon  any  legal  matters  when  required.  You  must'  understand 
and  respect  this  power  and  duty  of  the  prosecuting  attorney, 
and  in  your  deliberations  you  should  cause  no  embarrassment 
to  him  or  to  yourselves  by  asking  or  receiving  any  advice  upon 
anything  other  than  that  which  the  law  authorizes.  You  are  not 
so  apt  to  remember  this  rule  as  is  the  prosecuting  attorney. 
Therefore,  I  caution  you  particularly  as  to  it. 

It  may  happen  in  your  deliberations  that  charges  and  accusa- 
tions of  crime  may  be  made,  and  it  may  come  to  your  knowledge 
that  by  calling  other  witnesses  who  have  some  knowledge  of 
the  transaction,  the  suspicion  or  charge  may  be  cleared  up. 
I  regard  it'  just  as  incumbent  upon  you  to  follow  out  this  line 
of  examination  as  any  other  that  may  come  legitimately  within 
the  province  of  your  examinations  and  investigations.  At 
least  twelve  of  the  grand  jurors  must  concur  in  the  finding  of 
an  indictment,  and  when  so  found,  the  foreman  shall  indorse 
on  the  indictment,  "A  true  bill,"  and  subscribe  his  name  thereon 
as  foreman. 

It  is  made  the  duty  of  the  grand  jury  at  each  term  of  the 
court,  to  visit  the  county  jail,  examine  it's  state  and  condition, 


GRAND  JURY.  1587 

and  inquire  into  the  discipline  and  treatment  of  the  prisoners, 
their  habits  and  accommodations.  You  are  required  to  report 
to  the  court  in  writing,  whether  the  rules  prescribed  by  the 
judges  have  been  faithfully  kept  and  observed,  and  whether 
any  provisions  of  the  law  for  the  regulation  of  county  jails 
have  been  violated,  pointing  out  particularly  in  what  such  vio- 
lation, if  any,  consists. 

There  is  one  crime  with  reference  to  which  the  statute  makes 
it  the  duty  of  judges  of  the  common  pleas  courts  of  this  state, 
to  especially  charge  the  grand  jury  at  every  regular  term 
thereof.  It  is  the  crime  of  operating  bucket-shops,  or  gambling 
in  margins.  In  obedience  to  this  statute,  I  charge  you  to  dili- 
gently inquire,  investigate  and  true  presentment  make  of  all 
persons  guilty  of  a  violation  of  the  provisions  of  the  act  against 
the  so-called  bucket-shop  and  margin  gamblers. 

Now,  gentlemen,  let  me  say  to  you  that  the  statute  has  espe- 
cially enjoined  this  duty  upon  the  court,  to  give  you  special 
instructions  regarding  this  matter.  It  is  therefore  as  much 
your  duty  to  actually,  honestly,  and  impartially  investigate  and 
determine  whether  any  violations  of  this  law  are  being  committed 
within  the  confines  of  this  county,  as  it  is  made  the  duty  of  the 
court  to  especially  charge  you  regarding  this  matter. 

You,  as  well  as  the  prosecuting  attorney,  have  the  right  to 
require  the  clerk  to  issue  subpoenas  for  witnesses  to  be  brought 
before  you  to  testify.  You  are  at  liberty  at  any  time  to  call 
for  further  instructions  from  the  court,  although  the  instruc- 
tions which  the  prosecutor  and  his  assistants  give  you,  will 
probably  be  sufficient  for  all  purposes. 

Your  attention  will  be  called  to  accusations  of  crime,  by  the 
prosecuting  attorney,  which  come  into  this  court  from  the  police 
court  and  from  justices  of  the  peace,  having  been  bound  over  to 
the  grand  jury  by  those  courts. 

You  must  understand,  however,  that  your  investigations  are 
not  confined  to  this  elass  of  e;ises,  but  thai  you  have  the  power, 
and  that  it  is  your  duty  to  lake  the  initiative  yourselves,  and 
cxamin-  into  any  matters  other  than  the  class  of  eases  coming 
up  to  you  in  the  regular  manner  from  the  examining. 


1588  INSTRUCTIONS  TO  JURY. 

In  making  this  original  examination,  you  will  be  guided  and 
governed  by  the  injunctions  heretofore  given  you. 

Gentlemen,  you  will  now  retire  to  your  room,  and  proceed 
as  speedily  as  the  nature  of  your  work  will  permit,  and  in  due 
time  make  your  report  to  the  court.1 
i  Franklin   Co.    Com.    Pleas,    Kinkead,   J. 

Sec.  1814.    Introductory. 

A  grand  jury  is  composed  of  not  less  than  fifteen  good  and 
lawful  men  summoned  from  the  county.  An  indictment  is  a 
written  accusation  of  crime  against  one  or  more  persons  pre- 
sented to  and  preferred  by  the  grand  jury  upon  their  oath  or 
affirmation. 

Before  you  enter  upon  the  discharge  of  your  duties,  it  is 
incumbent  upon  the  court  to  instruct  you  concerning  them, 
and  it  is  your  duty  to  obey  the  instructions  so  given.  An 
outline,  an  abstract,  of  your  duties  is  contained  in  the  oath 
which  your  foreman  took  and  the  rest  of  you  took  by  adoption. 
You  were  sworn  to  diligence,  secrecy,  and  impartiality;  or,  as 
has  been  summarized  by  another,  your  duty  is  to  "inquire  with 
zeal,  hear  with  attention,  deliberate  with  coolness,  judge  with 
impartiality,  and  decide  with  fortitude." 

Sec.  1815.     Origin  of  institution  of  grand  jury. 

It  has  long  been  a  cardinal  principal  of  English  law,  that  no 
one  shall  be  put  upon  trial  for  any  capital  or  other  infamous 
crime  or  felony,  until  he  has  first  been  indicted  by  a  grand  jury 
of  the  county  in  which  crime  was  committed. 

The  institution  of  the  grand  jury  is  of  very  ancient  origin. 
In  the  struggles  and  contests  which  arose  in  England  between 
the  powers  of  the  king  and  the  rights  of  the  subject,  it  often 
stood  as  a  barrier  against  persecution  in  his  name.  It  finally 
became  an  institution  by  which  the  subject  was  rendered  secure 
against  oppression  from  unfounded  prosecutions.  Drawing  the 
same  inspiration  from  our  parent  country,  and  from  considera- 


GRAND  JURY.  1589 

tions  which  gave  to  it  its  chief  value  in  England,  the  grand  jury 
with  us  is  designed  as  a  means,  not  only  of  bringing  to  trial 
persons  accused  of  crime  upon  just  grounds,  but  also  as  a  means 
of  protecting  the  citizen  against  unfounded  accusations,  whether 
they  come  from  the  representatives  of  our  state,  or  be  prompted 
by  partisan  passion  or  private  enmity. 

Sec.  1816.     Grand  jury  to  institute  criminal  proceedings  as 
well  as  to  guard  against  unjust  accusations. 

Constantly  bear  in  mind  the  two  fundamental  principles 
{ante,  1813)  lying  at  the  basis  of  the  institution  of  which  you 
are  now  duly  and  legally  impaneled  as  members,  and  charged 
with  its  responsibilities. 

The  one  principle  is  as  important  as  the  other;  neither  is 
more  binding  upon  you  than  the  other. 

It  is  highly  important  in  the  interests  of  society,  that  accusa- 
tions be  made  against  those  appearing,  upon  an  honest  and 
impartial  examination,  to  be  probably  guilty  of  the  commis- 
sion of  a  crime.  It  is  just  as  essential  in  the  interests  of  society 
that  no  unjust  or  unfounded  accusations  be  made  against  any- 
one, as  it  is  that  well  founded  accusations  shall  be  made  against 
those  who  are  guilty.  The  making  of  unjust  accusations  would 
tend  to  injure  society  almost  as  much  as  the  just  preferment 
of  accusations  would  benefit  society. 

Members  of  a  grand  jury  ought  to  be  able  to  readily  discover 
from  those  who  appear  before  it,  whether  or  not  they  are 
prompted  by  partisan  or  private  enmity.  Scrutinize  carefully 
the  testimony  of  any  such  persons. 

Sec.  1817.     Oath,  and  responsibility  imposed  thereby. 

The  oath  as  administered  to  you  contains  some  of  the  essen- 
tial principles  which  must  control  and  govern  you  in  your  de- 
liberation. There  is  no  greater  responsibility  resting  upon  a 
member  of  society  than  there  is  upon  one  who  takes  an  oath  to 
perform  a  public  duty.  The  taking  of  an  oath  by  a  grand 
juror  means  that  he  shall  observe  it  to  the  same  extenl  as  the 
judge  of  the  court  observes  his.     A  juror,  be  he  petit  or  grand, 


1590  INSTRUCTIONS  TO  JURY. 

who  does  not  honestly  and  conscientiously  observe  and  keep  his 
oath,  is  almost  as  harmful  to  society  as  are  those  who  commit 
crimes.  The  responsibilities  of  grand  and  petit  jurors  are  ma- 
terially different. 

Your  oath  contains  an  appeal  to  conscience  in  the  presence 
of  your  God,  that  you  shall  keep  secret  what  takes  place  in  your 
presence  in  the  grand  jury  room.  The  purpose  of  this  injunc- 
tion is  plain  and  most  commendable.  You  may  have  accusa- 
tions brought  before  you  which,  after  due  examination  and 
deliberation,  you  will  find  unfounded,  and  return  no  indictment. 
The  laws  of  decency  demand  that  you  shall  not  individually 
slander  your  brethren.  Then  how  much  stronger  shall  be  the 
seal  upon  your  tongue  in  respect  to  what  goes  on  in  the  grand 
jury  room. 

Sec.  1818.     Special  charge  as  to  bucket-shops — Gambling  in 
margins. 

There  is  one  crime  with  reference  to  which  the  statute  makes 
it  the  duty  of  judges  of  the  common  pleas  courts  of  this  state, 
to  especially  charge  the  grand  jury  at  every  regular  term 
thereof.  It  is  the  crime  of  operating  bucket-shops,  or  gambling 
in  margins.  In  obedience  to  this  statute,  I  charge  you  to  dili- 
gently inquire,  investigate  and  true  presentment  make  of  all 
persons  guilty  of  a  violation  of  the  provisions  of  the  act  against 
the  so-called  bucket-shop  and  margin  gamblers.  Now,  gentle- 
men, our  judges  have  been  charging  the  grand  juries  at  every 
session  of  court  as  to  this  matter  for  many  years,  but  it  seems 
to  amount  to  nothing.  Still  there  is  constantly  filed  in  our 
court's  actions  to  recover  money  lost  at  this  species  of  gambling, 
which  are  prolonged  as  long  as  possible  by  technical  objections 
and  are  settled  about  the  time  they  are  reached  for  trial.  The 
law  should  not  be  trifled  with,  nor  the  time  of  this  court  taken 
up  with  such  cases.  It  is  your  duty  to  call  some  of  these  parties 
in  and  examine  them. 

I  am  reminded  that  I  once  read  a  book  written  by  a  distin- 
guished moral  philosopher  who  occupies  a  chair  in  one  of  our 
great  universities,  in  which  it  was  stated  that  the  law  gave 


GRAND  JURY.  1591 

attention  to  the  small  gambler,  but  overlooked  the  large  gam- 
bler who  dealt  in  stocks  and  wheat  on  margins.  This  distin- 
guished scholar  had  overlooked  the  statutes  such  as  we  have  in 
Ohio  and  in  other  states,  and  especially  was  not  informed  that 
it  was  made  a  special  duty  of  this  court  to  charge  grand  juries 
respecting  this  class  of  gambling.  And  yet  he  is  half  right, 
because  the  law  seems  to  be  inoperative.  We  read  in  the  daily 
newspapers  within  but  a  few  days,  that  the  chief  of  police 
sounded  the  death  knell  to  the  bucket-shops  in  Chicago.  Let 
this  grand  jury  see  that  the  same  evil  is  eradicated  from  this 
locality. 

I  do  not  see  why  any  special  stress  should  be  laid  upon  one 
form  of  gambling  by  requiring  a  special  charge  as  to  the  par- 
ticular form,  any  more  than  upon  another  different  way  of 
getting  another  man's  money  by  games  of  chance.  In  obedience 
to  the  law,  however,  I  charge  you  that  it  is  your  duty  to  investi- 
gate and  determine  whether  or  not  within  the  domain  of  Frank- 
lin county,  Ohio,  there  are  any  persons,  corporations,  associa- 
tions, chambers  of  commerce,  boards  of  trade,  co-partnership, 
or  other  person,  who  are  keeping  any  bucket-shop  office  or  other 
place  wherein  is  conducted  or  permitted  the  pretended  buying 
or  selling  of  the  shares  of  stocks  or  bonds  of  any  corporation, 
or  petroleum,  cotton,  grain,  provisions,  or  other  produce,  either 
on  margins  or  otherwise,  without  any  intention  of  receiving  and 
paying  for  the  property  so  bought,  or  of  delivering  the  property 
so  sold;  or  wherein  is  conducted  or  permitted  the  pretended 
buying  or  selling  of  such  property  on  margins,  or  when  a  party 
buying  any  such  property,  or  offering  to  buy  the  same,  does  not 
intend  actually  to  receive  the  same  if  purchased,  or  deliver  the 
same  if  sold. 

Now,  gentlemen,  let  me  say  to  you  that  the  statute  has  espe- 
cially enjoined  this  duty  upon  the  court,  to  give  you  special 
instructions  regarding  this  matter.  It  is,  therefore,  just  as 
much  a  part  of  your  duty  to  actually,  honestly,  and  impartially 
investigate  and  determine  whether  any  violations  of  lliis  law 
are  being  committed  within  the  confines  of  this  county,  as  it 


1592  INSTRUCTIONS  TO  JURY. 

is  made  the  duty  of  the  court  to  especially  charge  you  regarding 
this  matter.  If  we  are  going  to  get  any  results  from  this  special 
injunction  of  the  legislature,  I  charge  you  to  not  fail  to  comply 
with  the  directions  of  the  court  in  this  matter. 

It  is  just  as  incumbent,  however,  upon  the  court  to  charge 
you  that  it  is  your  duty  to  examine  into  any  and  all  kinds  of 
violations  of  our  criminal  statutes  as  it  is  in  this  particular  one, 
which  has  just  been  called  to  your  attention.1 
i  Franklin  County,  Kinkead,  J. 

Sec.  1819.     Character  of  evidence  to  warrant  indictment. 

It  is  not  your  province  to  determine  in  any  case  whether  a 
person  who  may  be  accused  of  having  committed  a  crime  is 
really  guilty.  It  is  to  determine  whether  there  is  sufficient 
evidence  to  put  him  on  trial  before  a  petit  jury.  Before  you 
can  find  a  bill,  you  ought  to  be  satisfied  that  the  evidence  before 
you  unexplained  and  uncontradicted  would  be  sufficient  to  au- 
thorize a  petit  jury  to  convict  the  accused  of  the  crime  which 
is  imputed  to  him.  If  the  evidence  only  establishes  a  proba- 
bility of  guilt,  that  is  not  sufficient ;  but  in  determining  this 
question,  you  have  no  right  to  assume  that  there  will  be  evi- 
dence upon  the  trial  of  the  case  before  a  p»etit  jury  that  would 
explain  or  contradict  the  evidence  which  has  been  offered  by 
the  state  before  you.  You  are  to  decide  the  question  solely 
upon  the  evidence  that  is  before  you ;  and  if  it  satisfies  you 
that  it  is  sufficient  to  warrant  a  petit  jury  in  convicting,  it  is 
your  duty  to  indict,  otherwise  not.  The  rule  requiring  suffi- 
cient evidence  to  convince  beyond  a  reasonable  doubt  does  not 
apply  to  the  deliberations  and  conclusions  of  a  grand  jury.1 

1  Code,  sec.  7193,  requires  that  the  judge  call  attention  particularly  to 
the  obligation  of  secrecy,  and  explain  the  law  applicable  to  such 
matters   as   are  likely  to   be  brought   before   them. 

Sec.  1820.     Legal  evidence  only  to  be  considered. 

It  is  your  duty  not  to  listen  to  any  testimony  except  that 
which  is  legal;    that  excludes  hearsay,  reports,  rumors,  or  con- 


GRAND  JURY.  1593 

jectures,  but  it  is  competent  for  you  to  consider  any  legal  evi- 
dence which  comes  before  you  properly,  whether  it  tends  to 
excuse  or  exculpate  the  persons  who  may  be  under  charge. 

Sec.  1821.    Looking  at  guilt  and  innocence. 

Your  duty  even  goes  farther  than  this.  While  the  design 
of  the  law  is  that  the  grand  jury's  investigation  shall  be  one- 
sided, still,  if  in  the  pursuit  of  truth  it  is  developed  that  there 
is  evidence  within  reach  of  the  grand  jury  that  may  explain 
away  or  qualify  th^j  charge  under  consideration,  it  is  compe- 
tent for  you  to  send  for  that  testimony.  It  is  not  right  that 
any  person  should  be  indicted  for  an  isolated  fragment  of  any 
transaction,  as  has  been  well  said.  No  innocent  person  should 
be  indicted  if  there  is  evidence  within  reach  of  the  grand  jury 
that  would  qualify  or  explain  away  suspicious  circumstances 
against  him.  But  this  does  not  mean — and  this  statement  I  am 
about  to  make  is  consistent  with  the  one  I  have  just  made — it 
does  not  mean  that  you  are  to  send  out  and  search  for  testimony 
that  would  exculpate  the  persons  who  may  be  under  charge. 
You  are  not  a  petit  jury,  and  you  have  no  right  to  supersede 
the  trial  jury  by  hearing  both  sides  of  a  case.  The  evidence 
which  you  may  send  for  to  explain  away  or  qualify  the  evidence 
for  the  state  offered  before  you  means  simply  that  kind  of  testi- 
mony. It  does  not  mean  that  you  can  send  for  evidence  which 
would  contradict  the  evidence  offered  for  the  state,  and  thus 
compel  you  to  locate  the  preponderance  of  evidence,  or  to  deter- 
mine which  of  the  witnesses  whose  testimony  conflicts  are  telling 
the  truth. 

Sec.  1822.     Scope  of  inquiry. 

The  oath  which  you  took,  gentlemen  of  the  jury,  makes  it 
your  duty  to  "diligently  inquire  and  true  presentment  make 
of  all  such  matters  and  things  as  shall  be  given  you  in  charge, 
or  may  come  to  your  knowledge  touching  the  present  service."1 
That  language  is  a  little  bit  obscure  and  it  needs  annotation. 


1594  INSTRUCTIONS  TO  JURY. 

Obviously  it  means  any  matter  which  may  be  given  you  in 
charge  by  the  court,  or  which  may  be  submitted  to  your  con- 
sideration by  the  prosecuting  attorney.  It  includes  those  cases 
in  which  persons  have  either  been  recognized  or  committed  to 
jail  to  await  an  indictment,  a  list  of  which  will  be  handed  to 
your  foreman. 

This  designation  of  the  scope  and  subjects  of  your  inquiry 
also  means  that  it  is  your  duty  to  inquire  into  crimes  of  which 
the  knowledge  may  come  to  you  from  three  other  sources.  While 
you  are  investigating  the  matters  that  may  be  submitted  to  your 
consideration  by  the  court,  or  by  the  prosecuting  attorney,  or 
which  may  come  before  you  on  this  list  that  I  mention,  a  wit- 
ness testifying  may  reveal  facts  showing  that  another  crime 
has  been  committed ;  he  may  commit  perjury  in  testifying.  You 
may  yourselves  have  witnessed  the  commission  of  some  crime. 
From  the  disclosures  made  by  your  fellow  jurors  in  the  jury- 
room  you  may  learn  that  other  crimes  have  been  committed. 
It  is  your  duty  to  inquire  into  all  these  matters,  for  they  come 
within  the  purview  of  that  paragraph  or  portion  of  the  oath 
which  I  have  just  quoted.2 

1  Code,   sec.    13082. — This   oath   means   that   they   are   to    inquire   into  the 

circumstances  of  the  charge,  the  credibility  of  the  witnesses;  not 
to  judge  of  the  merits,  but  satisfy  their  minds  that  there  is  probable 
cause  for  the  accusation.     1  Wharton's  Cr.  Law,  492. 

2  The  grand  jury  shall  proceed  to  inquire  of  and  present  all  offenses  what- 

ever committed  within  the  limits  of  the  county.  Code,  sec.  13082. 
This  seems  to  be  the  only  statute  in  Ohio  in  any  manner  designating 
the  scope  of  inquiry  to  be  made.  The  extent  of  the  powers  of  the 
grand  jury  is  not  well  defined  by  statute  or  by  the  authority  of 
precedent.  Different  courts  have  arrived  at  variant  conclusions. 
Taking  the  oath  administered  and  the  provision  of  the  statute 
referred  to  and  it  surely  authorizes  the  jury  to  investigate  for 
themselves.  That  grand  juries  may,  on  their  own  motion,  insti- 
tute any  prosecution,  see  Opinion  of  Attorney  General,  22;  Wil- 
son's Lectures,  361;  U.  S.  v.  Tompkins,  2  Cranch  C.  C.  46;  Prof. 
Wharton's  (5th  Ed.)  Crim.  Law,  p.  457,  gives  the  opinion  of  Judge 
Catron,  of  the  U.  S.  Circuit  Court,  in  which  he  maintained  that: 
"The  grand  jury  have  the  undoubted  right  to  send  for  witnesses 
and  have  them  sworn  to  give  evidence  generally."  In  Ward  v. 
State,  2  Mo.  120,  the  court  held  that  the  grand  jury  could  call 
and    request    witnesses    to    testify    generally.     To    same    effect    see 


GRAND  JURY.  1595 

State  v.  Wallcott,  21  Conn.  272.  Our  statute  makes  it  the  duty 
of  the  clerk,  "when  required  by  the  grand  jury,"  to  issue  subpoenas, 
which  further  indicates  that  our  state  is  not  committed  to  the 
power  of  the  grand  jury  themselves  to  institute  matters. 
In  Lewis  v.  Wake,  74  N.  C.  194,  the  inquisitorial  power  of  the  grand  jury 
to  invade  the  family  privacy  of  the  county  was  denied. 

Sec.  1823.     Secrecy  must  be  observed — Another  form. 

Your  oath  makes  it  your  imperative  duty,  gentlemen  of  the 
jury,  to  keep  rigidly  in  confidence  the  counsel  of  the  prosecut- 
ing attorney,  his  assistants,  your  fellow  jurors,  and  yourselves, 
until  compelled  in  a  court  of  justice  to  reveal  it.  There  is  no 
obscurity  in  that  language,  and  in  that  portion  of  your  oath. 
It  means  that  you  are  not  at  liberty  to  communicate  to  any 
person  what  has  been  done  in  the  grand-jury  room ;  it  means 
that  you  are  not  at  liberty  to  tell  any  person  what  has  been 
done  or  said  in  the  grand-jury  room,  either  by  the  prosecuting 
attorney,  or  by  his  assistants,  or  by  j^our  fellow  jurors,  or  by 
yourselves.  It  means  that  you  must  have  courage  enough  to 
refuse  to  permit  anyone  to  question  you  about  the  proceedings 
in  the  grand-jury  room,  or  to  suggest  or  ask  you  to  vote  for  or 
against  the  indictment  of  anyone. 

As  a  rule,  legal  proceedings  do  not  avoid,  but  rather  seek 
daylight.  The  proceedings  of  the  grand  jury  are  an  excep- 
tion. Accusing  a  person  of  a  crime  which  may  blast  his  repu- 
tation and  cover  him  with  ignominy  is  a  grave  matter,  and 
should  not  be  done  except  for  sufficient'  reasons  and  for  the 
most  momentous  cause.  It  has  been  the  policy  of  the  common 
law  ever  since  the  Great  Charter  to  protect  guiltless  persons 
from  accusation.  One  of  the  objects  of  the  institution  of  the 
grand  jury  was  to  first  have  privately  examined  accusations  of 
crime  and  ascertain  whether  there  is  a  probability  of  their  truth 
before  giving  them  publicity  in  the  form  of  an  indictment. 

Again,  it  is  true  that  in  every  community  there  is  a  class  of 
persons  who  are  eager  to  start  criminal  prosecutions  upon  inade- 
quate evidence;  Sometimes  this  is  done  from  honest  motives; 
sometimes  from  base,  malicious,  and  corrupt  motives.  Tf  the 
grand  jury  were  not  required  to  keep  secret  their  deliberations. 


1596  INSTRUCTIONS  TO  JURY. 

what  occurs  in  the  grand-jury  room,  you  can  readily  see  that, 
at  every  term  of  court,  there  might  be  a  large  crop  of  unjustly 
damaged  reputations. 

Again,  when  a  criminal  prosecution  is  started  before  the 
grand  jury,  this  obligation  of  secrecy  should  be  observed  to  pre- 
vent the  accused  from  escaping  justice,  from  escaping  condign 
punishment.  If  they  could  learn,  by  the  grand  jury  not  keep- 
ing the  secrets  of  the  grand-jury  room,  that  they  are  to  be 
indicted,  opportunities  would  be  afforded  for  their  escape.  It 
is  the  usual  mode  of  beginning  prosecutions  for  an  arrest  to  be 
made  upon  a  warrant  issued  by  a  magistrate,  and  a  preliminary 
examination  to  be  had  before  the  magistrate,  where  the  accused 
can  meet  his  accuser  and  have  counsel  to  defend  him  and  exam- 
ine his  witnesses;  but  the  grand  jury  is  not  limited  by  law  in 
it's  investigations  to  cases  thus  initiated.  A  criminal  prosecution 
may  have  its  genesis,  its  beginning,  before  the  grand  jury.  I 
mention  that  because  I  want  to  further  illustrate  that  statement 
I  have  made  that  it  is  necessary  to  observe  this  part  of  your 
oath  in  order  to  prevent  that  class  of  criminals  from  escaping 
punishment. 

Again,  if  this  obligation  of  secrecy  was  not  enjoined  by  law, 
and  grand  jurors  did  not  keep  it,  there  would  be  another  way 
in  which  justice  might  be  defeated.  It  would  enable  the  friends 
of  those  who  were  accused  before  the  grand  jury  to  bring  to 
bear  all  possible  influences  to  prevent  the  indictment. 

It  is  therefore  obvious,  gentlemen  of  the  jury,  upon  these 
considerations,  that  this  duty  of  secrecy,  although  foreign  to 
the  law  and  its  proceedings  generally,  is  absolutely  necessary 
in  the  investigations  of  the  grand  jury,  for  the  protection  of 
the  innocent  and  the  punishment  of  the  guilty.  It  is  not  an 
idle  obligation  that  you  take  to  keep  these  matters  secret.  It  is 
not  a  meaningless  obligation ;  it  is  just  as  obligatory  upon  each 
grand  juror  as  is  the  oath  of  a  witness,  to  tell  the  truth,  the 
whole  truth,  and  nothing  but  the  truth.1 

i  Grand  juror  must  not  disclose  that  an  indictment  has  been  found  against 
any  person  not  in  custody.  It.  S.,  sees.  13556,  13569.  He  can  not 
state  in  court  how  he  voted  on  any  question.     R.  S.,  sec.  13570, 


CHAPTER   CVI. 
HARBORING  FEMALES. 

SEC.  SEC. 

1824.  House    of    ill-fame    denned —       1825.  Good  repute  for   chastity    de- 
Harboring  female  of  good  fined, 
repute  in — Harboring  de- 
fined. 

Sec.  1824.     A  house  of  ill  fame  defined — Harboring  a  female 
of  good  repute  in — "Harboring"  defined. 

A  house  of  ill  fame  is  alleged  to  have  been  kept  by  this  de- 
fendant, and  that  means  she  was  the  keeper  of  a  house  which 
persons  of  opposite  sexes  commonly  used  and  resorted  to  for 
purposes  of  prostitution  and  lewdness.  Whether  or  not  it  was 
such  a  house  at  the  time  named  in  the  indictment  you  have  a 
right  to  take  into  consideration  the  general  reputation  in  the 
neighborhood  where  she  lived  as  well  as  the  testimony  of  any 
witnesses,  including  defendant  herself,  and  determine  from  the 
whole  proof  whether  or  not  at  the  time  named  in  the  indictment 
this  defendant  was  in  fact  the  keeper  of  a  house  of  ill  fame. 

The  indictment  speaks  of  harboring  a  person,  which  means 
shelter  afforded  and  a  place  of  asylum  furnished  to  such  persons 
as  came  to  her,  and  if  you  find  from  the  proofs  of  the  case  at  the 
time  named  in  the  indictment  that  this  defendant  furnished 
A.  B.  and  C.  D.  a  room  to  stay  in  for  the  purpose  of  lewdness  you 
may  find  for  the  purposes  of  this  case  she  was  harbored.1 

i  Collings,  J.,  in  State  v.  McCandless,  Scioto  Co.  Com.   Pleas.     Approved 
by    Circuit    Court    at    March    Term.    is<»7.     The    indictment    was 

brought  under  Vol.  02.  O.  L.  207.  and  the  defendant  charged  with 
harboring  a  female  person  of  good  repute  for  chastity  under  18 
years. 

Sec.  1825.     "Good  repute  for  chastity"  defined. 

It  is  charged  in  the  Lndictmenl  and  for  certain  purposes  it 
must  appear  that  the  woman  therein  named,  A.  B.,  at  the  time 

1507 


1598  INSTRUCTIONS  TO  JURY. 

of  the  occurrence  alleged  in  the  indictment  was  a  person  of  good 
repute  for  chastity,  which  is  to  say  that  among  the  people  who 
knew  her  in  the  community  where  she  lived  and  that  persons 
with  whom  she  associated  knew  her  general  reputation  for 
chastity,  morality  and  womanly  behavior  was  not  questioned  or 
suspicioned.  In  order  to  determine  whether  or  not,  at  the  time 
of  the  occurrence  alleged,  she  was  a  person  of  that  repute,  you 
have  a  right  to  take  into  consideration  the  testimony  of  the 
persons  who  were  acquainted  with  her  and  with  whom  she  asso- 
ciated, and  what  they  say  about  her  general  standing  and  repu- 
tation in  the  community  where  she  resided,  as  well  as  the  con- 
duct of  the  woman  herself,  and  determine  from  the  whole  proof 
whether  or  not  she,  at  the  time  of  the  occurrence,  was  a  person 
whose  standing  and  reputation  for  chastity  where  she  lived  was 
good.  If  you  find  that  to  be  a  fact,  then  you  may  say  she  was 
a  person  of  good  repute  for  chastity.1 

i  Collings,  J.,  in  State  v.  McCandless,  Scioto  Co.  Com.  Pleas.  Approved 
by  the  Circuit  Court,  March  Term,  1897.  The  indictment  was 
brought  under  Vol.  92,  0.  L.  207,  amending  Code,  sec.  7023,  and  the 
defendant  charged  with  harboring  a  female  person  of  good  repute 
for  chastity  under  18  years  of  age. 


CHAPTER   CVIL 

HOMICroE— MURDER  IN  THE  FIRST  AND  SECOND 
DEGREE  AND   MANSLAUGHTER 


SEC.  SEC. 

1826.  Preliminary     statement     con-       1845. 

cerning  duty  and  obliga-       1846. 

tion  of  jurors. 
L827.  The  indictment. 

1828.  Plea  of  defendant— Not  guilty       1847. 

and  of  insanity. 

1829.  Burden   of    proof   on   plea   of       1848. 

not  guilty. 

1830.  Burden  of  proof  of  insanity. 

1831.  Degree    of    evidence    required       1849. 

to    prove    insanity — Pre- 
1831a.  Insanity.  1850. 

ponderance. 

1832.  Presumption  of   innocence.  1851. 

1833.  Reasonable  doubt. 

1834.  Circumstantial  evidence.  1852. 

1835.  Jurors   must   reason  together. 

1836.  Credibility  of  witnesses. 

1837.  Reputation    of    defendant    for       1853. 

peace  and  quiet. 

1838.  Essential      elements      to      be       1854. 

proven. 

1839.  Charge  of  first  degree  murder 

— Also  includes  lesser  de-       1855. 
grees. 

1840.  Law   as  to  homicide — Murder       1850. 

in    first    and    second    de- 
gree,   and    manslaughter       1857. 
defined. 

1841.  Intent.  1858. 

1842.  Malice. 

1843.  Deliberation    and    premedita- 

t  ion. 

1844.  Murder     in     second      degree —         1859. 

Distinguished  from  mur- 
der   in    first    degree. 


Manslaughter. 

Same — Provocation  sufficient 
to  reduce  to  man- 
slaughter. 

Adequate  or  reasonable  provo- 
cation— Another  form. 

Provocation — Reasonable  sus- 
picion of  infidelity  not 
sufficient. 

Assault  and  battery  and  as- 
sault defined. 

What  is  essential  to  convic- 
tion  in    the   hist   degree. 

An  act  feloniously  done  ex- 
plained. 

Inflicting  mortal  wound  with 
deadly  weapon  —  Infer- 
ence from. 

Person  intends  natural  con- 
sequences of  his  act. 

If  not  found  guilty  of  murder 
in  the  first  degree,  may 
be   of   second. 

May  find  guilty  of  man- 
slaughter  when. 

May  find  guilty  of  assault 
and  battery. 

Defendant  as  an  aider  and 
abettor. 

Defendant,  though  guilty  of 
no  overt  act,  entered  into 
a  conspiracy — Aider  and 
abettor. 

Intent  to  kill  in  murder  in 
second     degree — Use    of 

deadly   weapon. 

1599 


1600 


INSTRUCTIONS  TO  JURY. 


SEC. 

1860.  Malice — The       character       of 

weapon   used   to  be   con- 
sidered. 

1861.  Manslaughter — No    malice    in 

— Provocation  to  reduce. 

1862.  Provocation — All  surrounding 

circumstances  to  be  con- 
sidered— Cooling  time. 

1863.  Malice     in     murder — Another 

form. 

1864.  Malice — Another   form. 

1865.  "Deliberation"   and   "premedi- 

tation"   in    murder — An- 
other form. 

1866.  "Purposely,"         "unlawfully" 

and   "feloniously." 

1867.  Proof  of  purpose  to  kill,  mal- 

ice, deliberation  and  pre- 
meditation. 

1868.  Person     presumes     reasonable 

consequences  of  his  acts. 

1869.  Manslaughter  —  What       is  — 

Provocation. 


SEC. 

1870.  Manslaughter — Person  present 

doing  no  overt  act  not 
aider. 

1871.  Self-defense — Whether  defend- 

ant believed  he  was  about 
to  be  robbed — Burden  of 
proof  on  defendant. 

1872.  Self-defense  in    self-protection 

against  riotous  strikers 
attempting  to  stop  de- 
fendant from  working. 

1873.  Self-protection  in  ejecting  one 

from  saloon. 

1874.  Self-defense  —  What       consti- 

tutes— Another  form. 

1875.  When  a  person  may  take  the 

life  of  an  assailant  in 
self-defense — A  different 
form — Giddings  case. 

1876.  Right  to  repel  assault. 

1877.  Son  may  defend  parent. 

1878.  Justifiable   homicide. 

1879.  Common  defense  from  attack. 

1880.  Evidence   of   previous   charac- 

ter and  reputation. 


Sec.  1826.     Preliminary  statement  concerning  duty  and  obli- 
gation of  jurors. 

You  have  heard  the  evidence  offered  on  behalf  of  the  state 
and  the  defendant,  and  it  is  now  the  duty  of  the  court  to  in- 
struct you  concerning  the  law  which  shall  govern  you  in  your 
deliberations  upon  your  verdict.  It  is  your  duty  to  act  in 
accordance  with  these  instructions,  and  to  this  end  you  wTill  be 
studiously  careful  in  the  consideration  of  the  evidence  and  the 
law. 

You  are  the  triers  of  the  facts;  in  this  respect  the  court  has 
not  supervision  over  you.  You  will  ascertain  and  determine 
the  facts  from  the  evidence,  to  which  you  will  apply  the  law 
as  given  you  by  the  court,  and  render  such  verdict  upon  the 
facts  in  accordance  with  the  law  given  you  by  the  court,  as  your 
judgment  dictates. 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1601 

The  law  has  made  twelve  men  an  essential  part  of  the  court, 
whose  duty  in  determining  the  facts  is  as  important  as  that  of 
the  court  trying  the  case  and  determining  the  law  applicable 
to  it.  This  is  the  part  which  the  people  take  in  the  adminis- 
tration of  law  and  justice.  You  are  just  as  much  a  part  of 
the  court  as  the  judge  who  presides,  and  your  offices  for  the 
time  being  are  equally  as  important.  The  court  thus  consti- 
tuted, is  the  supreme  power  that  finally  determines  all  questions 
between  the  state  and  the  one  charged  with  crime. 

You  are  to  exercise  in  all  your  deliberations  the  judgment 
of  candid,  intelligent  men,  who  are  anxious  only  to  get  at  the 
truth.  You  should  be  especially  careful  that  you  shall  be  guided 
in  the  conclusion  to  which  you  come  by  the  evidence  submitted 
to  you  under  the  instructions  of  the  court,  and  nothing  else. 

This  is  a  case  of  first  importance  to  the  defendant  and  to 
the  state,  and  the  duty  with  which  you  are  charged  is  one  of 
the  most  solemn  and  sacred  that  can  devolve  upon  a  citizen  in 
any  relation  of  life.  The  citizenship  of  the  state  are  satisfied 
with  a  fair,  intelligent,  impartial  consideration  and  determina- 
tion by  a  jury.  It  is  essential  to  the  peace  and  welfare  of 
society  and  good  government  that  every  sane,  guilty  man  be 
punished  when  his  guilt  is  established  by  the  measure  of  proof 
required  to  convict  of  crime  in  a  court  of  justice.  It  is  also 
essential  to  the  welfare  of  society  and  of  government  that  there 
shall  be  no  conviction  of  a  person  irresponsible  at  the  time  of 
the  commission  of  the  act  charged  in  the  indictment.  The  great 
gravity  of  the  charge  and  the  caution  with  which  you  were 
selected  as  jurors,  admonish  you  that  your  verdict  should  be 
reached  with  great  care,  uninfluenced  by  considerations  of  sym- 
pathy or  prejudice,  and  that  it  should  lie  the  result  of  your 
soundest  and  best  judgment  upon  the  whole  case. 

If  jurors  discharge  their  duties  well,  if  youschallengo  the 
respect  of  the  community  by  the  justice,  intelligence  and  im- 
partiality of  your  decision,  you  will  command  the  reaped  and 
confidence  of  the  people  in  one  courts.  H  is  of  prime  conse- 
quence that  jurors  respect  and  exalt  the  ad minist ration  of  jus- 


1602  INSTRUCTIONS  TO  JURY. 

tice,  so  that  neither  party  shall  have  any  cause  to  feel  that  the 
case  has  not  been  impartially  considered  and  judged.  Thus 
realizing  the  gravity  of  your  duties,  the  court  directs  your 
attention  to  the  charges  made  against  the  defendant  by  the 
indictment  preferred  against  him  by  the  grand  jury.1 
i  State   v.  Cly,  Kinkead,  J. 

Sec.  1827.     The  indictment. 

The  indictment  charges  that  the  defendant  on  the day 

of did  unlawfully,  purposely  and  of  deliberate  and  pre- 
meditated malice,  kill  and  murder,  etc.  [The  formal  parts  are 
omitted,  because  they  are  to  be  taken  from  each  case.] 

Sec.  1828.     Plea  of  defendant — Not  guilty  and  of  insanity. 

To  this  indictment  the  defendant  has  entered  a  plea  of  not 
guilty,  which  puts  in  issue  and  denies  each  and  every  averment 
therein. 

In  support  of  this  plea  of  not  guilty,  defendant  has  inter- 
posed a  plea  of  insanity.  As  a  penalty  of  the  law  is  assessed 
against  persons  only  as  are  of  sound  mind  and  intellect,  the 
court  first  instructs  the  jury  concerning  the  plea  of  insanity. 

Sec.  1829.     Burden  of  proof  on  plea  of  not  guilty. 

The  plea  of  not  guilty  places  the  burden  of  proving  all  the 
essentials  of  the  crime  on  the  state,  w7hich  if  must  do  beyond  a 
reasonable  doubt. 

Sec.  1830.     Burden  of  proof  of  insanity. 

The  law  presumes  every  person  to  be  sane  until  the  contrary 
is  shown.  Therefore,  the  burden  of  proving  the  defense  of 
insanity  claimed  is  upon  the  defendant  in  this  case.  The  pre- 
sumption of  law  that  the  defendant  was  sane  at  the  time  in 
question  is  to  be  regarded  by  you  as  the  full  equivalent  of 
express  proof  of  his  sanity  until  such  time  as  it  is  made  to 
appear  to  you  by  a  preponderance  of  the  evidence  admitted  in 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1603 

this  case  that  the  defendant  was  insane  at  the  time  of  the  com- 
mission of  the  act  of  killing  charged  in  the  indictment. 

The  degree  of  evidence  required  for  the  proof  of  the  defense 
of  insanity  claimed,  is,  that  it  shall  be  established  by  a  prepon- 
derance of  the  evidence,  the  defendant  being  held  to  no  higher 
degree  of  proof  of  this  defense. 

Sec.  1831.     Degree  of  evidence  required  to  prove  insanity — 
Preponderance. 

A  preponderance  of  evidence  in  legal  procedure  means  the 
greater  weight  thereof;  that  is,  the  jury  is  to  be  governed  by 
what  you  consider  to  be  the  greater  weight  of  the  evidence,  giv- 
ing such  credit  to  the  testimony  of  witnesses  as  your  judgment 
or  opinion  requires. 

The  greater  weight  of  the  evidence  is  to  be  determined  by 
you  not  by  the  number  of  witnesses  who  have  given  their  testi- 
mony, but  by  the  character,  quality,  reason  or  logic  and  value 
of  their  testimony  according  to  your  best  judgment ;  the  greater 
weight  means  the  greater  probative  value. 

The  law  of  this  state  does  not  require  the  defendant  to  prove 
his  insanity  at  the  time  of  the  commission  of  the  fact  charged 
to  a  degree  of  certainty,  but  merely  that  he  was  probably  insane. 
The  evidence  may  be  considered  to  preponderate  in  favor  of  the 
insanity  of  the  defendant  at  the  time,  whenever  its  existence 
is  by  the  greater  weight  of  the  evidence  made  probable  in  your 
opinion  after  having  given  a  full  and  fair  consideration  of  all 
the  evidence  adduced  for  and  against  it.  If  the  evidence  touch- 
ing the  defense  of  insanity  in  your  opinion,  upon  full  considera- 
tion thereof,  is  evenly  balanced,  it  does  not  then  preponderate 
and  it  will  then  be  your  duty  to  conclude  by  your  verdict  that 
defendant  at  the  time  of  the  act  charged  was  sane.1 
i  State  v.  Cly,  Kinkead,  J. 

Sec.  1831a.     Insanity. 

The  state  has  no  interesl  in  the  conviction  and  punishment 
of  an  irresponsible  person  ;  it  would  afford  no  example  to  others, 
nor  would  it  deter  others  from  commission  of  crime.     But  the 


1604  INSTRUCTIONS  TO  JURY. 

state  is  zealous  that  justice  shall  be  done.  Every  person  is  pre- 
sumed to  be  sane,  until  proven  insane. 

A  person  who  has  normal  intellect  and  reason,  of  course  has 
the  power  and  ability  to  control  his  act,  and  if  he  does  not  keep 
within  the  law,  he  must  be  held  responsible. 

If  his  mind  is  unbalanced,  and  is  therefore  unable  to  control 
his  acts,  he  should  not  be  held  responsible. 

The  jury  must  move  with  caution,  and  carefully  weigh  every 
circumstance  that  may  shed  any  light  upon  the  question.  You 
must  decide  whether  the  defendant  probably  had  a  diseased 
brain  at  the  time,  or  whether  he  was  actuated  by  excitement  or 
highly  nervous  condition  from  worry,  or  by  passions  and  an- 
gered feelings,  or  revenge,  produced  by  motives  of  anger,  hatred 
or  revenge. 

Many  manifestations  of  insanity,  as  the  term  is  used  in  law, 
are  to  be  found  in  the  law  books.  But  I  will  not  confuse  the 
jury  by  stating  them  to  you.  I  shall  instead  be  content  with 
merely  stating  what  the  real  test  of  legal  responsibility  is, 
whether  at  the  time  of  the  homicide  the  brain  of  the  defendant 
was  partially  deranged  or  diseased  from  some  cause,  to  such  an 
extent  that  his  will  power,  his  judgment,  reflection  and  control 
of  his  mind  was  so  impaired  that  the  act  of  homicide  was  the 
result  of  diseased  or  deranged  mind  so  that  by  reason  thereof 
he  was  unable  at  the  time  to  control  his  act,  and  that  by  reason 
of  such  condition  of  mind  he  was  unable  at  the  time  to  distin- 
guish between  right  and  wrong. 

If  the  jury  find  from  the  evidence  at  the  time  defendant  shot 
and  killed  his  wife,  there  was  some  excitement  of  his  mind  which 
probably  prompted  an  unpremeditated  action  of  spontaneous 
inclination  to  kill  his  wife,  which  said  excitement  you  find  to 
probably  have  arisen  from  some  mental  derangement,  instead 
of  from  feelings  of  passion,  anger  and  revenge  of  a  normal  or 
sane  mind,  and  that  the  defendant  could  not  and  did  not  at  the 
time  distinguish  between  the  right  and  wrong  of  his  act,  then 
the  jury  may  find  the  defendant  not  guilty. 

If,  on  the  other  hand,  you  find  from  the  evidence  that  the 
defendant  was  sane,  that  his  mind  at  the  time  of  the  homicide 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1605 

was  uot  diseased,  but  that  he  was  at  the  time  responsible  in  law 
for  the  consequences  of  his  acts,  you  will  dismiss  the  question 
of  insanity  from  further  consideration,  and  then  give  attention 
to  the  facts  and  law  touching  the  homicide.1 
i  State   v.  Kovacs,  Kinkead,  J. 

Sec.  1832.     Presumption  of  innocence. 

The  indictment  creates  no  presumption  of  guilt  against  the 
defendant.  The  law  creates  a  presumption  in  favor  of  one 
charged  with  crime,  that  he  is  innocent  until  he  is  proven  guilty 
according  to  law.  This  means  that  when  the  jury  enters  upon 
its  deliberations  in  the  consideration  of  the  charges  made  by 
the  indictment,  it  shall  proceed  upon  the  theory,  as  well  as  upon 
the  fact,  that  defendant  is  presumed  to  be  innocent.  The  de- 
fendant is  entitled  to  the  benefit  of  this  presumption  from  the 
beginning  of  the  trial,  and  until,  after  weighing  the  testimony 
carefully  according  to  the  tests  prescribed  by  law,  the  jury 
reaches  the  conclusion  that  this  presumption  has  been  overcome. 

It  is  the  purpose  of  the  law  that  jurors,  in  approaching  the 
consideration  of  charges  made  by  an  indictment,  shall  have 
their  minds  free  and  open,  and  that  they  shall  not  be  prejudiced 
or  influenced  by  the  fact  that  an  indictment  has  been  found 
against  the  defendant.  The  aim  and  purpose  of  the  rule  is  that 
jurors  are  to  consider,  and  be  guided  only  by  the  evidence 
offered  in  the  case.  If  the  jury  comes  to  the  conclusion  that 
the  evidence  has  overcome  the  legal  presumption  of  innocence, 
you  are  instructed  then  that  in  the  further  consideration  of  the 
testimony,  touching  the  guilt  or  innocence  of  the  defendant,  you 
must  be  governed  Mini  guided  by  the  rule  of  evidence  applicable 
in  criminal  procedure  that  you  shall  hr  satisfied  of  the  guilt  of 
the  accused  beyond  a  reasonable  doubt  before  you  can  find  him 
guilty,  and  if  not  so  satisfied  you  should  acquit  him. 

Sec.  1833.    Reasonable  doubt  denned  and  explained. 

It  is  not  incumbent  upon  one  charged  with  a  crime,  in  order 
to  prove  his  innocence,  thai    he  shall   satisfy   the  jury  of  the 


1606  INSTRUCTIONS  TO  JURY. 

existence  of  any  material  fact,  which,  if  true,  would  constitute 
a  complete  defense.  It  is  sufficient  if  the  evidence  merely  cre- 
ates in  the  minds  of  the  jurors  a  reasonable  doubt  of  the  exist- 
ence or  truth  of  material  facts,  in  which  case  the  defendant  is 
entitled  to  be  acquitted.  A  reasonable  doubt  is  an  honest,  rea- 
sonable uncertainty,  such  as  may  fairly  and  naturally  arise  in 
your  minds,  after  having  fairly  and  carefully  considered  all  the 
evidence  introduced  upon  the  trial  of  this  cause,  when  viewed 
in  the  light  of  all  the  facts  and  circumstances  concerning  the 
same.  It  is  a  doubt  formed  upon  a  real,  tangible,  substantial 
basis.  "  It  is  such  a  doubt  as  would  cause  a  reasonably  prudent 
and  considerate  person  to  pause  and  hesitate  to  take  action  con- 
cerning matters  affecting  his  own  material  interests,  or  in  mat- 
ters pertaining  to  the  graver  and  more  important  affairs  of 
life,  or  in  transactions  like  the  one  involved  in  this  case.  A 
doubt  is  not  reasonable  if  it  rests  upon  or  is  founded  upon  a 
mere  caprice,  fancy  or  conjecture ;  it  is  unreasonable,  also,  if 
it  arises  in  the  mind  of  a  juror  by  reason  of  his  own  personal 
feelings,  passion  or  sentiment.  A  juror  who  acts  upon  such  a 
doubt,  or  who  creates  a  doubt  in  his  own  mind,  to  avoid  a  dis- 
agreeable duty,  violates  the  oath  which  he  takes.  If,  after  a 
careful  and  impartial  consideration  of  all  of  the  evidence  in  this 
case,  you  can  say  and  feel  that  you  have  an  abiding  conviction 
of  the  guilt  of  the  defendant,  and  you  are  fully  satisfied  beyond 
a  reasonable  doubt  of  the  truth  of  the  charge,  then  you  arc 
satisfied  beyond  a  reasonable  doubt.  If,  from  all  the  evidence 
in  the  case,  the  jury  have  a  reasonable  doubt,  whether  the 
defendant  has  been  proven  guilty,  it  is  then  your  duty  to  find 
the  defendant  not  guilty. 

Sec.  1834.     Circumstantial  evidence. 

The  plea  of  not  guilty  entered  by  the  defendant  has  the  effect 
of  a  denial  that  he  discharged  the  pistol  which  the  indictment 
alleges  defendant  did  discharge  and  shoot  off  to,  against  and 
upon  the  said  A.  0.  with  leaden  bullets  and  shot  her,  the  said 
A.  C,  then  and  there  purposely  and  of  deliberate  and  premedi- 
tated malice,  and  which  did,  as  charged,  cause  her  death. 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1607 

No  witness  has  been  produced  by  the  state  who  has  testified 
that  he  saw  the  defendant  do  the  shooting,  as  alleged.  You 
will  therefore  look  to  and  consider  the  surrounding  facts  and 
circumstances  as  developed  from  the  testimony  from  which  you 
will  determine  the  truth  or  falsity  of  the  allegations  of  the  in- 
dictment according  to  the  requisite  degree  of  proof. 

What  is  meant  by  circumstantial  evidence  in  criminal  cases, 
is  the  proof  of  such  facts  and  circumstances  connected  with  or 
surrounding  the  commission  of  the  crime  charged,  as  tend  to 
show  the  guilt  or  innocence  of  the  party  charged.  If  these 
facts  and  circumstances  are  sufficient  to  satisfy  the  jury  of  the 
guilt  of  the  defendant  as  charged,  beyond  a  reasonable  doubt, 
then  such  evidence  is  sufficient  to  authorize  the  jury  in  finding 
a  verdict  of  guilty  of  the  crime  or  crimes  charged,  provided 
you  find  by  the  requisite  degree  of  proof  the  existence  of  all 
the  other  facts  essential  to  constitute  the  crime  of  which  you 
find  the  defendant  guilty  by  your  verdict.  Circumstantial 
evidence  is  legal  and  competent  evidence  in  criminal  cases,  if 
of  such  character  as  to  exclude  every  reasonable  hypothesis 
other  than  that  the  defendant  is  guilty,  and  is  entitled  to  the 
same  weight  as  direct  testimony.1 
i  State  v.  Cly,  Franklin  Co.  Com.  Pleas.  Kinkead,  J. 

Sec.  1835.     Jurors  must  reason  together. 

The  law,  in  constituting  a  jury  of  twelve  men,  thus  contem- 
plates that  each  and  every  one  of  you  shall  give  your  individual 
consideration  of  and  judgment  upon  the  evidence.  The  rules 
of  law  pertaining  both  to  the  essentials  of  the  crime  and  the 
degree  and  rules  of  evidence,  which  are  explained  to  you  in 
these  instructions,  are  necessarily  binding  upon  the  individual 
conscience  and  judgment  of  the  members  of  the  jury.  It  is 
the  duty  of  each  juryman  while  deliberating  upon  his  ver- 
dict, to  confer  witli  his  fellows  and  give  careful  consideration 
to  the  views  which  his  Eellow  juror  may  have  to  present  upon 
the  testimony  in  the  case.  A  juror  should  not  turn  a  deaf 
ear  to  the  views  of  his  fellows,  and  without  listening  to  their 


1608  INSTRUCTIONS  TO  JURY. 

reasons  and  arguments,  obstinately  stand  by  his  own  opinion 
in  the  matter,  regardless  of  what  may  be  said  by  the  other  jury- 
men. It  must  be  the  object  of  all  of  you  to  arrive  at  a  common 
conclusion,  and  to  that  end  you  should  deliberate  together  with 
calmness  and  be  considerate  of  each  other's  views.1 

J  State  v .  Cly,  Kinkead,  J.     This  is  supported  by  an  opinion  by  Shauck,  J. ; 
Davis  v.  State,  63  0.  S.  173,  174. 

Sec.  1836.     Credibility  of  witnesses. 

The  credibility  of  each  of  the  witnesses  is  left  entirely  to  the 
jury.  The  weight  and  credibility  to  be  given  the  testimony  is 
committed  to  your  judgment.  In  determining  this  question, 
you  may  consider  their  intelligence,  their  manner  and  conduct 
on  the  witness  stand,  whether  any  witnesses  showed  zeal  or 
feeling  for  or  against  either  side ;  whether  there  was  any  reluct- 
ance on  the  part  of  any  witness  in  testifying;  whether  a  wit- 
ness has  an  interest  in  the  conviction  of  the  accused,  or  an 
interest  in  his  liberty,  or  in  the  liberty  of  any  other  person. 
You  may  consider  the  relation  that  each  witness  bears  to  the 
case ;  his  means  of  information ;  the  interest,  if  any,  he  may 
have  in  the  result;  the  motives,  if  any,  that  might  lead  him  to 
swear  falsely,  or  otherwise ;  whether  his  motives  for  relating 
the  facts  testified  to  are  wholly  to  bring  a  guilty  person  to 
justice,  or  to  vent  his  wrath  upon  an  innocent  person ;  or 
whether  his  sole  motive  was  to  tell  the  truth  without  regard  to 
consequences;  whether  or  not  any  witness  was  in  a  situation 
that  might  tend  to  make  him  warp  his  evidence,  or  whether  he 
was  so  situated  that  such  witness  or  witnesses  had  no  reason 
to  testify  falsely.  You  may  consider  the  probability  or  the  im- 
probability of  the  truth  of  the  statements  made  by  any  witness. 
You  are  not  obliged  to  believe  the  statements  of  any  witness 
merely  because  he  made  them ;  and  you  may,  if  your  judgment 
dictates,  believe  part  and  disbelieve  part  of  any  witness'  testi- 
mony. These  and  many  other  matters  might  be  called  to  your 
attention  whereby  you  are  to  test  the  evidence.  Weighing  the 
testimony  by  these  and  other  tests  you  may  have,  you  will  deter- 
mine the  effect  to  be  given  it,  and  you  will  give  the  testimony 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1609 

such  credit  as  it  is  entitled  to ;  and  if  you  determine  from  all 
the  evidence  adduced  at  the  trial,  under  the  charge  of  the  court, 
that  the  evidence  has  established  beyond  a  reasonable  doubt 
the  guilt  of  the  accused,  it  is  your  duty  to  say  so  in  your  verdict. 
But  if  the  evidence  has  not  so  convinced  you,  your  duty  requires 
you  to  find  the  defendant  not  guilty. 

Sec.  1837.    Reputation  of  defendant  for  peace  and  quiet. 

You  are  instructed  that  the  defendant  is  entitled  to  have  the 
evidence  touching  the  question  of  his  reputation  for  peace  and 
quiet  considered  by  the  jury,  together  with  all  the  other  evi- 
dence. The  weight  to  be  attached  to  such  evidence  as  bearing 
on  the  guilt  or  innocence  of  the  defendant  is  for  the  jury  alone 
to  determine. 

Sec.  1838.    Essential  elements  to  be  proven. 

Before  a  conviction  can  be  had  under  this  indictment  there 
are  certain  essential  elements  of  the  crime  which  must  be  estab- 
lished by  the  state  to  your  satisfaction,  and  satisfy  you  and 
each  of  you  beyond  the  existence  of  a  reasonable  doubt,  as 
already  stated.  These  essential  element's  of  fact  are :  The  crime 
must  have  been  committed  by  the  defendant,  in  the  County  of 

,  in   State  of  ,  on  or  about  ,   19 — ;    that 

W.  H.  H.,  named  in  the  indictment,  was  at  that  time  a  living 
person  in  that  county,  that  he  is  now  dead,  that  he  died  in  the 

County  of ,  in  the  State  of ,  on  the day  of 

,  19 — ;   that  he  came  to  his  death  by  reason  of  a  mortal 

wound  inflicted  upon  him  by  the  defendant  in  the  manner  and 
form,  with  the  intent  and  purpose,  and  by  the  means  mentioned 
and  described  in  the  indictment.  These  are  questions  of  fact 
to  be  determined  by  you  from  the  evidence  in  the  case,  and  if 
the  state  has  failed  to  establish  each  and  all  of  them  to  the  satis- 
faction of  each  arid  all  of  you,  to  the  extent  and  In  the  manner 
already  indicated,  the  defendant  could  not  and  should  not  be 
convicted. 


1010  INSTRUCTIONS  TO  JURY. 

Sec.  1839.  Charge  of  first  degree  murder — Also  includes 
lesser  degrees. 
This  indictment  by  its  terms  charges  the  defendant,  as  already 
stated,  with  murder  in  the  first  degree;  it  also  includes  and 
embraces  in  its  terms  the  crimes  of  murder  in  the  second  degree, 
manslaughter,  assault  and  battery,  and  assault;  and  under  it 
the  defendant  may  be  lawfully  convicted  of  the  crime  of  murder 
in  the  first  degree,  or  any  of  the  lesser  crimes  mentioned,  if  in 
your  judgment  the  evidence  before  you,  under  the  law  here 
given,  warrants  such  conviction,  and  upon  the  failure  of  the 
evidence  under  such  rules  as  are  here  given  you  to  establish 
his  guilt  as  to  any  one  of  them,  he  must  be  acquitted.  If  the 
evidence  so  warrants  it,  you  may  find  him  guilty  of  murder  in 
the  first  degree,  or  you  may  acquit  him  of  murder  in  that  degree 
and  find  him  guilty  of  murder  in  the  second  degree,  or  you  may 
acquit  him  entirely  of  murder  and  find  him  guilty  of  man- 
slaughter, or  you  may  acquit  him  of  murder  and  manslaughter 
and  find  him  guilty  of  assault  and  battery,  or  you  may  acquit 
him  of  all  the  foregoing  and  find  him  guilty  of  a  simple  assault, 
and  should  the  evidence  fail  to  satisfy  your  minds  beyond  a 
reasonable  doubt  and  to  the  extent  already  stated  of  the  guilt 
of  the  defendant  of  the  crime  of  murder  in  either  degree,  or  of 
manslaughter,  or  of  assault  and  battery,  or  of  assault  only,  you 
should  acquit  him  and  return  a  general  verdict  of  not  guilty.1 

i  Code,  .sec. (7316). 

Refusal  to  instruct  as  to  manslaughter  when  no  evidence.  O'Brien  v. 
Com.,  89  Ky.  359.  Not  necessary  to  instruct  as  to»  lower  degrees 
where  no  evidence  warrants.  McClain  Cr.  L.,  §391:  30  Cal.  206, 
117  Mo.  389,  89  Ky.  354,  56  Minn.  78. 

Sec.  1840.  Law  as  to  homicide— Murder  in  first  and  second 
degree,   and  manslaughter  defined. 

The  court  will  now  instruct  the  jury  concerning  the  law  of 
homicide,  the  different  degrees  and  grades  thereof. 

Homicide,  according  to  the  statutes  in  Ohio,  is  divided  into 
murder  in  the  first  degree,  and  murder  in  the  second  degree, 
and  manslaughter. 

One  who  purposely,  and  with  deliberate  and  premeditated 
malice  kills  another,  is  guilty  of  murder  in  the  first  degree. 

One  who  purposely,  and  maliciously,  but  without  deliberation 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1611 

and   premeditation,   kills   another,   is   guilty   of  murder   in   the 
second  degree. 

Whoever  unlawfully  kills  another,  except  as  described  in  the 
two  sections  defining  murder  in  the  first  and  second  degree, 
that  is  otherwise  than  purposely  and  with  deliberate  and  pre- 
meditated malice,  and  otherwise  than  purposely  and  maliciously, 
but  without  deliberation  and  premeditation,  is  guilty  of  man- 
slaughter. Putting  it  in  another  way,  manslaughter  is  the  un- 
lawful killing  by  one  person  of  another,  either  upon  a  sudden 
quarrel,  and  upon  legal  provocation,  or  unintentionally  while 
the  slayer  is  in  the  commission  of  some  unlawful  act.  The 
essential  facts,  the  existence  of  which  the  jury  must  find  beyond 
a  reasonable  doubt,  in  order  to  find  the  defendant  guilty  of 
murder  in  the  first  degree  as  charged,  are  the  following:  1.  That 
M.  K.  is  dead;  2.  That  her  death  occurred  in  Franklin  county, 
Ohio ;  3.  That  her  death  was  caused  by  the  act  of  the  defendant 
by  the  means  and  in  the  manner  as  charged  in  the  indictment ; 
4.  That  the  wound  was  by  him  purposely  inflicted  with  the  in- 
tention of  causing  the  death  of  the  deceased ;  5.  That  the  wound 
was  by  him,  the  defendant,  maliciously  inflicted ;  6.  That  the 
act  of  killing  was  so  committed  with  deliberate  and  premeditated 
malice ;   7.  That  the  defendant  was  sane. 

The  court  will  now  define  and  explain  to  the  jury  with  some 
detail,  the  essential  elements  of  murder  in  the  first  degree.1 
1  State  v.  Kovacs,  Kinkead,  J. 

Sec.  1841.     Intent. 

Purposely  to  kill,  as  used  in  the  statute  defining  the  crime, 
means  that  the  jury  must  find  beyond  a  reasonable  doubt  that 
the  defendant  intentionally  took  the  life  of  the  deceased.  The 
law  regards  all  persons  who  have  arrived  at  years  of  discretion 
as  rational  beings,  capable  of  reasoning  from  cause  and  effect 
upon  matters  within  the  ordinary  experience  and  knowledge 
of  men.  It  is,  therefore,  a  rule  of  evidence  which  the  jury 
must  apply,  that  every  person  possessed  of  the  faculty  or  reason, 
is  presumed,  as  a  matter  of  fact,  to  contemplate  and  intend  the 
natural  and  probable  consequences  of  what  lie  does.  Acting 
under  this  rule  of  Law,  and  weighing  and  considering  the  evi- 
dence offered   in  support  of  the  allegations  in  the  indictment. 


1G12  INSTRUCTIONS  TO  JURY. 

if  the  jury  finds  beyond  a  reasonable  doubt  that  the  defendant 
did,  by  the  means  and  in  the  manner  alleged  in  the  indictment, 
take  the  life  of  M.  K.,  then  the  jury  may  draw  from  such  act 
of  killing  such  inferences  as  in  its  judgment  it  believes  the 
evidence  to  warrant,  touching  the  intent  of  the  defendant  in 
taking  the  life  of  the  deceased.  In  determining  whether  de- 
fendant intentionally  took  the  life  of  his  wife,  the  jury  may, 
in  addition  to  the  consideration  of  the  manner  and  means  by 
which  she  came  to  her  death,  look  to  all  the  surrounding  con- 
ditions and  circumstances  leading  up  to  and  at  the  time  of  the 
commission  of  the  alleged  act,  and  may  draw  therefrom  such 
inferences  as  the  judgment  of  the  jury  warrant,  touching  the 
intent  of  the  defendant  in  the  commission  of  the  alleged  act 
of  homicide.  If,  therefore,  you  find  that  the  defendant  did 
take  the  life  of  the  deceased  intentionally,  you  will  then 
proceed  further  to  determine  and  find  whether  he  did  such  act 
of  killing  with  deliberate  and  premeditated  malice,  the  essen- 
tials to  constitute  murder  in  the  first  degree.  The  jury  will 
notice  from  the  definitions  of  homicide  in  the  three  grades,  that 
murder  in  the  first  degree  differs  from  that  in  the  second  degree 
in  that  the  intentional  killing  must  have  been  done  by  defendant 
with  deliberate  and  premeditated  malice.1 
i  State  v.  Cly,  Franklin  Co.,  Kinkead,  J. 

Sec.  1842.     Malice. 

Malice  and  intent  or  design  to  kill  are  essential  ingredients 
of  both  murder  in  the  first  and  second  degree,  but  malice  in 
the  first  degree  differs  from  malice  in  murder  in  the  second 
degree,  in  that  malice  in  the  first  degree  is  termed  in  law 
"express  malice,"  and  which  may  be  made  to  appear  to  the 
jury  from  evidence  by  conduct  of  the  accused,  previous  to  the 
act  of  crime  alleged,  by  conditions  and  circumstances  pertain- 
ing thereto,  by  conditions  and  circumstances  under  which  the 
alleged  crime  may  have  been  committed,  by  the  manner  and 
means  in  which  the  killing  is  alleged  to  have  been  done  by  the 
accused. 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1G13 

Such  malice  may  appear  and  be  found  by  the  jury  from  the 
evidence,  or,  the  jury  may  infer  such  malice  from  evidence  of 
facts  or  conditions  surrounding  the  alleged  crime  and  leading 
up  thereto,  as  before  stated,  in  order  and  for  the  purpose  of 
determining  in  the  minds  of  the  jury  whether  the  act  of  killing 
should  be  raised  to  murder  in  the  first  degree.  To  warrant  the 
jury  in  finding  from  the  evidence  that  the  defendant  was  actu- 
ated and  controlled  by  deliberate  and  premeditated  malice  at 
the  time  of  committing  the  alleged  homicide,  the  jury  must 
determine  and  find  from  the  evidence  that  the  defendant  delib- 
erated and  premeditated  upon  a  purpose  to  kill  the  deceased 
for  such  length  of  time  that  the  jury  may  believe  therefrom 
that  the  accused  had  prior  to  the  act  of  alleged  killing  formed 
in  his  mind  a  settled  purpose  and  intent  to  take  the  life  of  his 
wife. 

Malice  in  murder  in  the  first  degree  is  an  attribute  of  the 
mind,  and  must  be  found  by  the  jury  to  be  of  such  nature  and 
character  as  to  warrant  it  in  believing  and  finding,  beyond  a 
reasonable  doubt,  that  the  mind  of  the  defendant  at  the  time 
of  the  alleged  homicide  was  of  a  wicked,  depraved  and  malign- 
ant nature  and  character;  that  he  wholly  failed  to  appreciate 
or  regard  his  social  duties  to  mankind  and  that  he  was  fatally 
bent  on  mischief.  This  is  the  legal  meaning  of  malice  in  the 
first  degree.  But  it  is  not  necessary  that  the  jury  should  find 
that  the  malignity  of  the  mind  of  the  accused  which  resulted 
from  the  deliberate  and  premeditated  malice,  should  have  been 
confined  to  a  particular  ill  will  toward  the  deceased.  Ins  wife, 
although,  the  jury  in  determining  upon  the  existence  or  non- 
existence or  deliberate  and  premeditated  malice,  may  look  to 
all  the  circumstances,  to  all  the  conditions  existing  ;it  the  time 
of  the  alleged  crime,  and  for  some  time  prior  thereto,  respect- 
ing the  relation  existing  between  the  defendant  and  his  wife. 
as  well  as  any  statements  made  by  defendant  subsequent  to  the 
homicide,  if  any  you  find  were  made,  and  also  the  manner  of 
the  alleged  killing. 

While  the  jury  in  determining  upon  the  existence  or  non- 
existence of  deliberate  and  premeditated  malice,  may,  as  already 


1614  INSTRUCTIONS  TO  JURY. 

stated,  consider  with  all  the  evidence  the  use  of  a  deadly  weapon 
in  the  alleged  act  of  killing  by  the  defendant  and  draw  such 
inferences  therefrom  as  in  the  judgment  of  the  jury  seems 
reasonable  and  proper  touching  the  question  of  malice,  still  the 
court  instructs  you  that  any  such  inference  as  you  may  draw 
from  that  act,  may  not  alone  justify  the  jury  in  finding  the 
existence  of  express  malice  which  is  essential  in  murder  in  the 
first  degree.1  In  addition  to  such  inference  as  to  malice,  before 
the  jury  may  find  the  defendant  to  have  been  actuated  by  delib- 
erate and  premeditated  malice,  it  must  find  from  the  surround- 
ing circumstances  and  conditions,  or  from  statements  or  declara- 
tions made  by  the  accused,  if  any  such  were  made,  such  facts 
as  will  warrant  you  in  inferring  therefrom  that  the  act  of 
alleged  killing  was  done  by  the  defendant  with  deliberate  and 
premeditated  malice.2 
i  State    v.    Turner,   Wright,    20.     See    102    Am.    St.    1005.     Actual    intent, 

Com.  v.  Drum,  58  Pa.  St.  9. 
2  State   v.    Cly,   Franklin   Co.,   Kinkead,  J.     Wharton   Cr.   L.,   §§147,   149, 

150,  64  Mo.   319,   116  Ala.  454,   125   Ala.  636. 

Sec.  1843.     Deliberation  and  premeditation. 

The  law  fixes  no  length  of  time  within  which,  prior  to  the 
act  of  killing,  the  premeditated  purpose  to  kill  or  the  premedi- 
tated malice,  shall  be  found  by  the  jury  to  have  existed  in  the 
mind  of  the  defendant.  It  is  an  essential  prerequisite  of  mur- 
der in  the  first  degree  that  the  accused  shall  have  deliberated 
and  premeditated  upon  the  purpose  to  kill  for  some  period  of 
time  prior  to  the  act  of  killing  as  charged.  Deliberation  and 
premeditation  as  used  in  the  statute  are  words  of  such  familiar 
meaning  as  to  need  no  explanation  to  a  jury  of  intelligent  men. 
Deliberation  means  that  the  defendant  meditated  and  reflected 
upon  the  purpose  to  kill;  premeditation  means  that  the  medi- 
tation incident  to  deliberation  must  have  been  before  the  act 
of  killing  as  charged.  The  terms  of  the  statute  are  such  as  to 
require  that  the  defendant  must  have  formed  the  purpose  and 
intent  to  kill,  and  that  the  same  must  have  existed  in  the  mind 
for  such  a  period  of  time  prior  to  the  killing  as  precludes  the 
idea  that  the  purpose  and  intent  to  kill  was  formed  for  the 
first  time  at  the  very  time  of  the  act  of  killing.     If  you  find  that 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1615 

the  defendant  had  no  such  intent  and  purpose  to  kill  in  his 
mind  prior  to  the  act  of  killing,  you  would  not  be  justified  in 
finding  the  defendant  guilty  of  murder  in  the  first  degree.  It 
is  only  essential  that  the  jury  should  find  from  the  facts  and 
circumstances  that  the  design  and  intent  to  take  the  life  of  the 
deceased  existed  for  some  period  of  time  prior  to  the  act  of 
taking  the  life  of  the  deceased;  and  it  is  sufficient  although  but 
a  short  time  elapsed  after  such  purpose  was  formed  and  the 
act  of  killing  was  done,  if  there  was  deliberate  and  premeditated 
malice  upon  the  part  of  the  defendant.1 
J  State   v.   Cly,   Kinkead,  J. 

Sec.  1844.    Murder    in    second    degree — Distinguished    from 
murder  in  first  degree. 

The  court  now  instructs  you  as  to  murder  in  the  second  degree. 
It  is  defined  by  statute  as  follows:  "Whoever,  purposely  and 
maliciously  kills  another,  but  without  deliberate  and  premedi- 
tated malice,  is  guilty  of  murder  in  the  second  degree. 

Murder  in  the  second  degree  is  distinguished  from  murder  in 
the  first  degree,  in  that  it  lacks  the  element  of  deliberate  and 
premeditated  malice.1  It  has  the  common  essential  of  intent  to 
kill ;  and  malice  is  also  an  essential.  But  in  this  degree  malice 
is  what  is  termed  in  law  to  be  implied  malice.  Its  meaning  is 
the  same  in  the  second  as  it  is  in  the  first  degree  of  murder;  that 
is,  it  is  the  dictate  of  a  wicked,  depraved  and  malignant  mind, 
indicative  of  a  mind  devoid  of  all  social  duties  in  his  relations  to 
society  and  to  those  about  him.  The  distinguishing  characteristic 
of  malice  in  second  degree  murder  from  malice  in  the  first  degree 
is  in  the  manner  and  mode  of  proof  thereof.2  Keeping  in  mind 
the  meaning  of  malice,  it  need  only  be  here  stated  that  if  the 
jury  find  from  the  evidence  that  the  deceased  came  to  her  death 
by  t i u ■ ; f n s  of  a  pistol  shot  fired  into  her  body  at  the  hands  <:!'  the 
defi  odant,  as  charged  in  the  indictment,  and  the  jury  believes 
that  such  act  was  naturally  calculated  to  cause  her  death,  it  may 
infer  malice  therefrom.3 

ifiS  Cal.  101,  8  Colo.  563,  10  Iowa,  447,  71   X.  TT.  606,  148  Pa.  St.  26. 
-•  110  Ala.  454,  125  \.  C.  636. 

8  State    v.   Cly,    Franklin    Co.,    Kinkead,  J. 


1616"  INSTRUCTIONS  TO  JURY. 

Sec.  1845.    Manslaughter. 

Manslaughter  is  distinguished  from  murder  in  the  first  and 
second  degree  by  the  fact  that  the  killing  is  done  unlawfully, 
either  upon  a  sudden  quarrel  upon  legal  provocation,  or  uninten- 
tionally while  the  slayer  is  in  the  commission  of  some  unlawful 
act.  Intentional  manslaughter  may  by  the  verdict  of  the  jury 
be  found  from  the  evidence  only  when  it  finds  that  the  act  of 
killing — not  being  murder  in  the  first  degree — is  the  result  of  a 
sufficient  provocation,  that  is,  such  provocation  as  under  the  law 
the  jury  may  find  to  be  adequate  to  reduce  the  act  of  killing  from 
murder  in  the  second  degree. 

It  is  the  province  of  the  court  to  instruct  the  jury  as  to  what 
may  warrant  it  in  reducing,  by  its  verdict,  the  crime  from 
murder  in  the  second  degree  to  that  of  manslaughter,  it  being 
a  legal  question,  while  it  is  the  function  of  the  jury  to  determine 
the  existence  or  non-existence  of  such  facts  as  may  or  may  not 
warrant  you  in  rendering,  upon  the  evidence,  a  verdict  of  man- 
slaughter. The  jury  will  be  called  upon  to  consider  this  question 
only  if  you  should  be  of  the  opinion  from  all  the  evidence  that 
the  defendant  was  not  guilty  of  murder  in  the  first  degree. 

It  is  a  rule  of  law  that  an  indictment  for  murder  in  the  first 
degree  necessarily  embraces  the  lower  grades  of  homicide,  upon 
the  principle  that  the  whole  necessarily  comprehends  its  various 
parts,  and  if  the  evidence  presented  warrants  it,  the  jury  may 
acquit  the  accused  of  the  higher  degree,  or  degrees,  and  convict 
of  the  lower. 

Manslaughter  is  the  unlawful  killing  of  another. 

The  absence  of  malice  is  the  element  of  the  case  in  homicide 
which  makes  it  manslaughter.1 

i  State  v.    Cly,   supra,  Kinkead,  J.     No   malice   in   manslaughter.     Knapp 
case,  4  C.  C.   (N.S.)   184;  affd.,  70  O.  S.  380. 

Sec.  1846.     Same — Provocation   sufficient  to  reduce   to   man- 
slaughter. 

The  homicide  can  be  reduced  from  murder  in  the  second  degree 
if  the  act  is  committed  by  the  use  of  an  instrument  calculated  to 


HOMICIDE MURDER  AND    .MANSLAUGHTER.  1617 

eause  death,  only  when  it  appears  from  the  evidence  that  the 
act  of  killing  was  done  in  the  sudden  heat  of  passion  and  upon 
sufficient  provocation.  When  a  person  is  killed  under  the 
influence  of  passion,  or  in  the  heat  of  blood,  produced  by  an 
adequate  provocation  and  before  a  reasonable  time  has  lapsed 
for  the  passion  to  cool,  the  act  of  homicide  will  in  such  case  be 
reduced  to  manslaughter.  The  provocation  must  be  so  near  to 
the  act  of  killing  as  that  there  is  not  time  for  the  blood  or  passion 
to  cool  and  the  act  of  killing,  to  be  manslaughter,  must  be 
directly  caused  by  the  passion  arising  out  of  the  provocation. 

It  is  the  province  of  the  court  to  state  what  in  law  constitutes 
adequate  provocation  to  reduce  the  crime  of  homicide,  and  the 
province  of  the  jury  to  determine  and  find  the  fact  of  the 
existence  of  sufficient  provocation  from  the  evidence. 

Suspected  infidelity  of  a  wife,  or  known  past  infidelity  of  the 
wife,  are  not  deemed  in  law  to  be  adequate  provocation  to  justify 
a  husband  in  taking  the  life  of  his  wife,  nor  is  an  unwillingness 
on  the  part  of  the  wife  to  live  with  her  husband  adequate  provo- 
cation in  law  to  reduce  a  homicide  from  murder  to  manslaughter. 

Nor  are  threats  or  harsh  words  sufficient  provocation. 

With  these  instructions,  gentlemen,  the  question  is  submitted 
to  you  for  your  determination  of  the  facts. 

The  court  has  now  stated  the  law  to  you  touching  the  three 
degrees  of  homicide,  pointing  out  the  elements  of  each.    You  will 
carefully  weigh  the  evidence  and  apply  the  law,  and  decide  the 
facts  in  accordance  therewith.1 
i  State  v.  Kovacs,  Kinkoart.  J. 

Inst  rue  I  ion  concerning  form  of  verdict.  Tf  you  find  that 
defendant  was  insane,  acquit  him. 

Tf  you  find  that  he  was  sane,  and  that  he  purposely  and  with 
deliberate  malice,  killed  his  wife,  then  your  verdict  should  be  one 
of  guilty  of  murder  in  the  first  degree. 

Tf  you  find  that  he  purposely  and  maliciously  killed  her.  but 
without  deliberate  and  premeditated  malice,  then  your  verdict 
should  be  guilty  of  murder  in  the  second  degree. 


1618  INSTRUCTIONS  TO  JURY. 

If  you  find  him  not  guilty  of  murder  in  the  first  or  second 
degree  but  that  instead  he  killed  her  intentionally  and  unlaw- 
fully, in  a  sudden  heat  of  passion,  and  upon  sufficient  provocation 
within  the  law  given  you  by  the  court,  your  verdict  may  be 
manslaughter. 

The  jury  should  come  at  its  verdict  without  regard  to  the 
penalty  imposed  by  law.  You  may,  however,  in  the  event  that 
your  verdict  should  be  one  of  guilty  of  murder  in  the  first  degree, 
if  you  deem  proper,  recommend  mercy,  in  which  case  it  will  be 
the  duty  of  the  court  to  sentence  the  defendant  to  imprisonment 
in  the  penitentiary  for  life. 

Sec.  1847.    Adequate    or    reasonable    provocation — Another 
form. 

While  the  definition  of  an  adequate  or  reasonable  provocation 
is  so  general,  and  perhaps  somewhat  indefinite,  the  law  is  explicit 
in  its  enumeration  of  some  of  the  facts  that  do  not  constitute  a 
legal  provocation  at  all.  Thus  words  of  reproach,  no  matter 
how  grievous  they  may  be,  and  contemptuous  and  insulting 
actions  or  gestures,  no  matter  how  much  calculated  to  excite 
indignation,  or  to  arouse  the  passions,  are  insufficient  to  free  the 
prisoner  from  the  guilt  of  murder  if  all  the  material  facts 
necessary  to  constitute  that  offense  have  been  proved.  The 
provocation  to  have  the  effect  of  alleviating  the  killing  into  man- 
slaughter must  have  consisted  of  personal  violence  done  by  the 
deceased  to  the  prisoner.  Nor  can  the  threats  which  were  said 
to  have  been  made  by  0.  against  the  life  of  the  prisoner  be 
considered  as  a  reasonable  provocation  to  negative  the  inference 
of  malice  and  reduce  the  killing  to  manslaughter.1 

i  Pugli,  J.,  in  the  Elliott  case,  Franklin  Co.  Approved  by  Sup.  Ct.  That 
legal  provocation  means  personal  violence,  see  26  W.  L.  B.  117, 
and  cases  cited  there.  Although  provocation  will  not  excuse,  it 
will  sometimes  furnish  ground  for  inflicting  less  severe  punishment 
in  homicide.  Clark's  Cr.  L.  72.  Where  there  is  adequate  provo- 
cation the  offense  may  be  manslaughter.  Maher  v.  People,  10  Mich. 
212.  By  adequate  or  reasonable  provocation  is  meant  a  provoca- 
tion, under  the  influence  of  which  an  ordinary  man  of  fair  disposi- 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1619 

tion  is  likely  to  act  rashly,  without  due  deliberation  or  reflection. 
Maher  v.  People,  10  Mich.  212.  What  is  a  reasonable  or  adequate 
provocation  is  a  question  of  fact  for  the  jury.  Provocation  need 
not  be  at  the  time  of  the  affray,  but  merely  so  recent  as  to  show- 
no  time  for  the  blood  to  cool,  4  0.  C.  C.  141.  One  day  is  suffi- 
cient for  cooling  time,  26  W.  L.  B.  116. 

Sec.  1848     Provocation — Reasonable  suspicion  of  infidelity  of 
wife  not  sufficient. 

Causes  arising  from  infidelity  of  a  wife,  as  where  the  accused, 
the  defendant,  discovers  another  person  with  his  wife  in  the  act 
of  committing  adultery,  the  killing  of  the  wife  at  the  time  of 
such  discovery  by  the  husband  would  be  such  legal  provocation 
as  would  warrant  the  jury  in  rendering  a  verdict  of  guilty  of 
manslaughter. 

But  it  is  only  when  the  husband  has  detected  his  wife  in  the 
act  of  adultery  that  the  provocation  will  be  deemed  in  law  suffi- 
cient. If  the  jury  should  find  from  the  evidence  offered  in  this 
case  that  the  defendant  did  not  discover  his  wife  in  the  act  of 
committing  adultery,  but  should  find,  on  the  contrary,  that  the 
defendant  had  reasonable  suspicion  and  cause  to  believe  that  his 
wife  had  at  some  time  previous  to  the  act  of  alleged  killing 
committed  acts  of  adultery,  you  are  instructed  that  if  you  should 
find  the  act  of  killing  to  have  been  done  by  the  defendant  under 
such  circumstances,  and  as  alleged  in  the  indictment,  and  for 
such  a  cause,  in  the  heat  of  passion  resulting  therefrom,  you 
would  not  be  justified  in  rendering  a  verdict  in  such  case  for 
manslaughter.1 

J  State  v.  Cly,  Franklin  Co.  Com.  Pleas,  Kinkead,  J.  Information  of 
wife's  infidelity.  Sawyer  v.  State,  :{.")  Ind.  80,  84;  Laros  v.  C,  84 
Pa.  200,  2  Bisn.  Cr.  Pr.,  sec.  675 

Sec.  1849.     Assault  and  battery  and  assault  defined. 

Assault  and  battery  consists  of  any  intentional  violence  by  one 
upon  the  person  of  another;  as  the  bare  touching  of  the  person 
of  another  in  an  angry,  revengful,  rude,  or  insolent  manner. 
and  even  greater  violence  might  amount  to  no  greater  crime. 
An  assault  is  defined  to  be  any  attempt  by  violence  to  do  ;i 
personal    injury  to   another,   and  this  may   be   cither   with   the 


1620  INSTRUCTIONS  TO  JURY. 

hand  or  with  a  weapon,  but  it  must  not  be  more  than  an  attempt, 
it  must  fall  short  of  inflicting  the  intended  injury  or  it  would 
amount  to  something  more  than  an  assault. 

Sec.  1850.  What  is  essential  to  conviction  in  the  first  degree. 
Under  this  indictment  it  is  essential  to  a  conviction  of  murder 
in  the  first  degree,  and  you  and  each  of  you  should  be  satisfied 
beyond  the  existence  of  a  reasonable  doubt,  and  to  the  extent 
already  stated,  that  the  defendant,  in  the  manner  and  in  the 
form  charged,  and  at  the  time  and  the  place  charged,  did  kill 
said  W.  H.  unlawfully,  feloniously,  and  purposely,  and  of 
deliberate  and  of  premeditated  malice.  An  act  is  done  unlawfully 
when  done  in  violation  of  law. 

Sec.  1851.     An  act  feloniously  done  explained. 

To  do  an  act  feloniously  is  to  do  it  criminally.  To  do  an 
act  purposely  means  to  do  it  intentionally,  not  accidentally  or 
by  mischance,  and  this  is  the  sense  in  which  this  term  is  used 
in  our  statutes  and  in  this  indictment.  It  imports  an  act  of  the 
will,  intention — a  design  to  do  an  act.  Ordinarily  the  purpose 
to  kill  is  to  be  gathered  or  deduced  from  the  circumstances  under 
which  the  killing  is  done.  The  presence  of  intent  or  purpose  is 
a  question  of  fact  to  be  determined  by  you  from  all  the  circum- 
stances and  facts  proven  in  the  case.1 
i  An  intention  must  be  present,  25  0.  S.  464. 

Sec.  1852.     Inflicting   mortal   wound   with   deadly   weapon — 
Inference  from. 

If  you  find  under  the  instructions  here  given,  that  the  defend- 
ant inflicted  a  mortal  wound  upon  W.  H.  with  a  deadly  weapon, 
that  the  same  was  used  in  a  manner  purposely  calculated  to 
destroy  life,  you  may  infer  the  intent  or  purpose  to  kill  from  the 
use  of  such  weapon.1 

i  Gardner  v.  State,  W.  392;  Erwin  v.  State,  29  0.  S.  186.  A  deadly 
weapon  is  one  which  is  dangerous  to  life  when  used  in  the  manner 
in  which  it  is  capable  of  the  most  injurious  results,  United  States 
v.  Small,  2  Curtis,  241. 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1621 

Sec.  1853.     Person  intends  natural  consequences  of  his  act. 

It  is  a  general  principle  and  you  may  apply  it  to  this  case, 
that  what  a  man  does  willfully  he  intended  to  do,  and  intended 
the  natural  and  reasonable  consequences  of  his  voluntary  and 
deliberate  acts,  unless  the  circumstances  are  such  as  to  indicate 
the  absence  of  such  intent.1 
i  Robbins  v.  State,  8  0.  S.  131. 

Sec.  1854.     If  not  found  guilty  of  murder  in  the  first  degree, 
may  be  of  second. 

If  you  find  the  defendant  is  not  guilty  of  murder  in  the  first 
degree,  you  may  then  inquire  further  and  ascertain  and  deter- 
mine whether  under  this  indictment  he  is  guilty  of  murder  in 
the  second  degree.  As  already  stated,  the  essential  elements  of 
this  crime  are  the  same  as  those  of  murder  in  the  first  degree, 
except  it  is  not  necessary  that  the  killing  be  done  of  deliberate 
and  premeditated  malice.  Therefore,  if  you  are  satisfied  beyond 
the  existence  of  a  reasonable  doubt  that  the  defendant,  on  the 
day  of ,  19—,  in  the  County  of ,  and  State  afore- 
said, in  the  manner  and  by  the  means  mentioned  and  described 
in  the  indictment,  did  unlawfully,  feloniously,  and  purposely 
kill  W.  II.,  but  without  deliberation  or  premeditation,  or  either 
of  them,  then  he  is  guilty  of  murder  in  the  second  degree,  and 
you  should  so  report  by  your  verdict.  If,  however,  you  have 
any  reasonable  doubt  as  to  the  essentials  of  any  one  or  all  of 
these  elements  of  murder  in  the  second  degree  having  been 
established  by  the  evidence  in  this  case,  it  will  be  your  duty 
to  acquit  the  defendanl  of  the  crime  of  murder  in  the  second 
degree  under  this  indictment.  In  considering  the  evidence  and 
determining  whether  or  not  the  defendant  is  guilty  of  murder  in 
the  second  (]<'fircc,  you  should  apply  the  same  definition  to  the 
words  "purposely"  and  "maliciously,"  and  the  terms  "malice" 
and  "purpose."  or  any  other  terms  therein  used,  as  have  already 
been  given  to  you  in  connection  with  the  instructions  as  to 
murder  in  the  first  degree. 


1622  INSTRUCTIONS  TO  JURY. 

The  law  presumes  any  felonious  killing  to  be  murder  of  some 
degree,  but  that  presumption  rises  no  higher  than  second  degree, 
unless  the  state,  by  clear  and  satisfactory  evidence,  establishes 
the  guilt  of  the  defendant  of  the  higher  crime  to  the  extent  and 
in  the  manner  already  stated.1 

i  The  jury  may  determine  the  grade  of  crime.     Adams  v.  State,  29  O.  S. 
412;   Dresbaek  v.  State,  38  0.  S.  365. 

Sec.  1855.    May  find  guilty  of  manslaughter,  when. 

If  you  in  your  investigation  of  this  case  should  find  the 
defendant  not  guilty  of  murder  in  the  first  or  second  degree, 
you  may  inquire  further  and  ascertain  whether  the  defendant 
is  guilty  of  unlawfully  killing  W.  H.,  in  the  manner  and  by 
the  means  and  at  the  time  and  place  charged  in  the  indictment, 
and  if  you  should  be  satisfied  to  the  extent  and  in  the  manner 
already  stated  that  W.  H.  was  killed  by  the  defendant,  then  you 
should  find  the  defendant  guilty  of  manslaughter,  and  should 
return  a  verdict  accordingly;  but  if  you  and  each  of  you  should 
not  be  so  satisfied,  then  you  should  render  a  verdict  of  acquittal 
as  to  this  offense.  In  manslaughter,  as  already  stated,  the 
unlawful  killing  may  be  without  malice,  either  upon  sudden 
quarrel  or  unintentionally  whilst  the  slayer  is  in  the  commission 
of  some  unlawful  act,  and  the  same  certainty  of  proof  is  required 
and  the  same  degree  of  proof  as  indicated  as  being  necessary  in 
murder  in  the  first  and  in  the  second  degree  before  a  verdict 
of  guilty  could  be  rendered  against  this  defendant  for  man- 
slaughter.1 

i  See  Adams  v.  State,  29  0.  S.  412.     Under  indictment  for  second  degree 
may  be  convicted  of  manslaughter.     Wroe  v.  State,  20  0.  S.  460. 

Sec.  1856.     May  find  guilty  of  assault  and  battery. 

If  you  should  find  the  defendant  not  guilty  of  any  of  these 
crimes  already  mentioned,  you  may  under  this  indictment,  if 
the  evidence  in  the  case  warrants  it,  find  the  defendant  guilty 
of  an  assault  and  battery,  or  of  an  assault  only.1  The  essential 
elements  of  these  offenses  have  already  been  given  in  the  defini- 
tions of  the  same,  and  need  not  now  be  repeated.  These  offenses 
should  be  established  by  the  same  certainty  of  proof  as  already 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1623 

indicated  as  being  necessary  in  each  of  the  other  crimes  named, 
and,  unless  you  are  satisfied  in  the  manner  and  to  the  extent 
already  stated  that  the  defendant  is  guilty  of  any  one  of  the 
crimes  or  offenses  named,  it  is  your  duty  to  acquit  him,  and  the 
presumption  of  innocence  already  spoken  of  follows  the  prisoner 
and  inures  it  to  his  benefit  to  the  extent  already  stated  as  to 
all  the  crimes  and  offenses  here  named,  and  to  each  essential 
element  necessary  to  constitute  such  crimes  or  offenses. 

i  Marts  v.  Stump,  26  O.  S.  162;  Lindsey  v.  State,  6!)  O.  S.  215;  Dresback 
v.  State,  38  O.  S.  367,  5  O.  241,  13  O.  S.  569,  23  0.  S.  582,  25  0. 
S.  399. 

Sec.  1857.     Defendant  as  an  aider  and  abettor. 

If  you  find,  under  the  directions  and  instructions  here  given 
you,  that  W.  H.  was  killed  at  the  time  and  place,  and  in  the 
manner  and  by  the  means  mentioned  in  the  indictment,  it  is  not 
necessary  for  you  to  find  that  the  blow  that  killed  H.  was  struck 
by  this  defendant  himself,  if  you  find  that  the  defendant  was 
present,  aiding  and  abetting  the  person  who  struck  the  blow, 
and  was  there  acting  in  concert  with  such  person  with  the  intent 
and  purpose  of  aiding  him  in  the  commission  of  the  offense,  and 
in  pursuance  of  a  common  design  and  purpose  previously  formed. 
Ordinarily  that  person  is  regarded  as  the  principal  who  performs 
the  act  complained  of,  and  one  who  acts  in  concert  with  him  with 
the  intent  and  purpose  to  aid  in  the  performance  of  the  act  and 
commission  of  the  offense  is  an  aider  and  abettor.  The  law,  how- 
ever, provides  that :  whoever  aids  or  abets,  or  procures  another  to 
commit  an  offense  may  be  prosecuted  and  punished  as  if  he 
were  the  principal  offender.  And,  in  this  case,  I  say  to  you  as 
a  matter  of  law  that,  if  you  find  that  a  crime  was  committed 
as  charged  in  this  indictment,  under  the  directions  and  instruc- 
tions here  given  you,  and  you  should  find  that  this  defendant 
with  others  had  formed  a  joint  design  and  purpose  to  commit  the 
same,  and  at  the  time  the  same  was  committed  this  defendant 
was  acting  in  concert  with  others  in  the  commission  thereof,  and 
with  the  joint  intent  and  purpose  to  commit  the  same,  and  that 
while  one  or  the  other  of  those  thus  acting  in  concert  with  the 


1624  INSTRUCTIONS   TO  JURY. 

defendant  did  the  manual  act  of  committing  the  crime  or  offense 
of  striking  the  blow  upon  the  forehead  of  W.  H.,  in  pursuance 
of  such  common  design  and  purpose,  this  defendant  was  present, 
aiding  and  abetting  in  the  accomplishment  of  the  common  design 
and  purpose,  then  he  would  be  guilty  of  the  crime  or  offense  so 
committed,  and  may  be  convicted  as  principal,  under  this  indict- 
ment, of  any  of  the  crimes  and  offenses  therein  charged.  But 
you  can  not  under  this  indictment  find  the  defendant  guilty  by 
reason  of  any  offense  committed  or  any  act  done  against  H.  H., 
and  before  you  can  find  this  defendant  guilty,  you  must  find 
that  there  was  a  common  design  and  purpose  between  him  and 
the  others  engaged  in  the  commission  of  the  crime,  to  do  the 
act  complained  of,  and  use  the  weapon,  if  you  find  a  weapon 
1o  have  been  used,  in  the  manner  and  for  the  purpose  intended 
oy  its  use,  and  all  these  matters  must  be  proven  in  the  manner 
and  to  the  extent  indicated  as  being  necessary  in  order  to  establish 
the  crime  itself  or  the  essential  elements  thereof.1 

i  J.  R.  Johnston,  J.,  in  The  State  r.  Charles  Morgan,  the  famous  "Blinky 
Morgan"  case.  Court  of  Common  Pleas,  Portage  County,  Sept.  7, 
1887. 

Sec.  1858.    Defendant,  though  guilty  of  no  overt  act,  entered 
into  conspiracy — Aider  and  abettor. 

In  determining  the  question  of  the  defendant's  guilt  or 
innocence  of  the  alleged  crime  of  murder  in  the  second  degree,  as 
well  as  of  the  other  grades  of  crime  included  in  the  indictment, 
as  heretofore  explained,  the  circumstances  may  be  such  that  the 
defendant  is  responsible  for  the  criminal  act  although  he  may  not 
have  personally  struck  the  fatal  blow  or  blows  resulting  in  W.  's 
death.  If  you  find  that  0.  and  one  or  more  of  his  associates  who 
were  with  him  on  that  occasion  had,  before  this  alleged  affray, 
planned  to  make  an  unlawful  assault  upon  W.,  or  one  or  more 
of  O.'s  said  associates,  in  furtherance  of  their  common  plan,  or 
design,  struck  the  fatal  blow  or  blows  resulting  in  W.'s  death, 
or,  if  at  the  time  of  the  alleged  homicide  0.  was  present  and 
assisted,  aided  or  abetted,  or  purposely  incited  or  encouraged  one 


HOMICIDE — MURDER  AND   MANSLAUGHTER.  1625 

or  more  of  his  said  associates  to  strike  the  blow  or  blows  resulting 
in  W.'s  death,  the  defendant  is  equally  as  guilty  as  if  he  had 
struck  the  fatal  blow  himself. 

On  the  other  hand,  the  circumstances  may  be  such  that, 
although  0.  was  involved  in  the  affray  that  resulted  in  the  death 
of  W.,  0.  would  not  be  guilty  of  any  offense,  or  may  be  guilty 
merely  of  the  offense  of  assault  and  battery.  If  you  find  that 
there  was  no  plan,  before  the  affray,  between  0.  and  one  or  more 
of  his  associates  then  with  him,  to  commit  the  unlawful  assault 
upon  W.,  and  that  the  fatal  blow  or  blows,  if  struck,  were  struck 
by  one  or  more  of  0.  's  associates,  and  that  O.  did  no  overt  act 
with  a  view  to  produce  the  killing  of  W.,  nor  in  any  wise  aided, 
or  abetted,  or  incited,  or  encouraged  the  others  to  assault  W., 
or  to  do  the  killing,  although  the  defendant  and  W.  were  involved 
in  an  independent  affray,  wherein  W.  was  the  aggressor,  or 
assailant,  and  the  defendant  was  within  his  own  rights  in 
carrying  on  the  affray,  the  defendant  is  not  guilty  of  any  crime. 
Furthermore,  if  you  find  from  the  evidence  that  there  was  no 
previous  plan  between  0.  and  one  or  more  of  his  associates  to 
commit  an  unlawful  assault  upon  W.,  or  to  kill  him,  and  that 
the  fatal  blow  or  blows  were  struck  by  one  or  more  of  O.'s 
associates  and  that  0.  did  no  overt  act  to  produce  the  killing  of 
W.,  or  in  any  wise  aided,  abetted,  or  incited,  or  encouraged  any 
of  the  others  to  make  the  unlawful  assault,  or  to  do  the  killing, 
but  became  involved  and  was  Hie  aggressor  in  an  independent 
fight  with  decedent,  in  no  wise  connected  with  the  others,  and  not 
calculated  to  produce  death,  or,  after  the  fatal  blow  was  struck 
by  another,  he  himself  struck  the  decedent  a  blow  or  blows 
which  were  not  calculated  to  produce,  and  did  not  produce  nor 
to  contribute  to  the  death  of  TV.,  the  defendant  would  not  bo 
guilty  of  murder  in  the  second  degree,  or  manslaughter,  but 
would  be  guilty  of  assault  and  battery. 

Keeping  in  view  the  instructions  which  T  have  just  given  you 
with  regard  to  the  circumstances  under  which  the  defendant  is 
responsible  for  the  criminal  acts  of  one  or  more  of  his  associates, 
and  those  circumstances  wherein  he  is  not  responsible  for  such 


1626  INSTRUCTIONS  TO  JURY. 

acts  but  is  only  responsible  for  his  own  criminal  act  or  acts,  if 
any,  the  court  will  now  proceed  to  charge  you  with  regard  to 
murder  in  the  second  degree  as  alleged  in  the  indictment.  The 
offense  charged  is  that  the  defendant  purposely  and  maliciously 

killed  one  J.  W.  on  or  about  the day  of ,  19 — ,  in  this 

county  and  state.1 

i  State  v.  Orris,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1859.     Intent  to  kill  in  murder  in  second  degree — Use 
of  deadly  weapon. 

To  authorize  a  verdict  of  guilty  of  murder  in  the  second  degree 
it  must  be  affirmatively  shown  by  the  state  that  there  was  at 
the  time  the  blow  was  given  an  intent  existing  in  the  mind  of  the 
defendant  to  kill  the  deceased,  and  that  he  delivered  the  blow  or 
blows  with  the  intent  to  kill. 

To  do  an  act  purposely  means  to  do  it  intentionally,  not 
accidentally  or  by  chance,  and  this  is  the  sense  in  which  this 
term  is  used  in  our  statutes  and  in  this  indictment.  It  imports 
an  act  of  the  will,  intention,  a  design  to  do  an  act.  Ordinarily, 
the  purpose  to  kill  is  to  be  gathered  or  deduced  from  the  circum- 
stances under  which  the  killing  is  done.  The  presence  of  intent 
or  purpose  is  a  question  of  fact  to  be  determined  by  you  from 
all  the  circumstances  and  facts  in  the  case.  If  you  find  under 
the  instructions  here  given  that  the  defendant,  or  one  or  more 
of  his  said  associates,  under  circumstances  as  herebefore  related, 
making  0.  responsible  for  their  acts,  inflicted  a  mortal  blow  or 
blows  on  J.  W.  with  a  deadly  weapon,  and  that  the  blow  or  blows 
were  applied  in  a  manner  purposely  calculated  to  destroy  life, 
you  may  infer  the  intent  or  purpose  to  kill  from  the  use  of  such 
weapon,  and  from  all  other  facts  and  circumstances  in  the  case. 
It  is  a  general  principle,  and  you  may  apply  it  to  this  case,  that 
what  a  man  does  willfully,  he  intended  to  do,  and  intended  the 
natural  and  reasonable  consequences  of  his  voluntary  and  deliber- 
ate acts,  unless  the  circumstances  are  such  to  indicate  the  absence 
of  such  intent.1 
i  State  v.  Orris,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 


HOMICIDE MURDER  AND    MANSLAUGHTER.  1627 

Sec.  1860.     Malice — The  character  of  weapon  used  to  be  con- 
sidered. 

Malice,  as  already  stated,  is  an  essential  element  of  murder 
in  the  second  degree.  In  law,  malice  signifies  a  willful  design 
to  do  another  an  unlawful  injury,  whether  such  design  be 
prompted  by  hatred  or  revenge  or  springs  from  the  wantonness 
or  depravity  of  the  heart,  disregarding  all  social  and  moral 
duties  and  fatally  bent  on  mischief. 

Applying  the  law  just  stated  with  regard  to  the  elements  of 
purpose  and  malicious  intent  to  kill,  you  will  consider  all  the 
facts  and  circumstances  adduced  on  the  part  of  the  state,  to 
determine,  if  you  conclude  that  the  defendant  killed  J.  W.,  as 
charged,  whether  or  not  he  killed  him  purposely  and  inten- 
tionally, and  further,  whether  or  not  he  killed  him  maliciously. 
In  considering  these  matters,  you  will  take  into  consideration  the 
character  of  the  weapon,  if  any,  the  manner  of  its  use,  if  any, 
the  acts  and  conduct  of  the  defendant  at  the  time  of  the  alleged 
killing,  the  probable  consequences  by  the  use  of  such  weapon, 
if  any,  or  producing  death,  or  otherwise,  applying  these  and  all 
the  other  facts  and  circumstances  adduced  you  will  determine 
whether  the  purpose  to  kill  and  the  malicious  killing,  as  charged 
in  the  indictment,  have  been  proved.  If  you  determine  that  it  is 
not  proved,  either  that  the  alleged  killing  was  done  purposely 
or  maliciously,  or  was  done  in  tbis  county  and  state,  or  was  done 
by  the  defendant,  it  will  be  your  duty  to  find  the  defendant  not 
guilty  of  murder  in  the  second  degree. 

Sec.  1861.     Manslaughter — No     malice     in — Provocation     to 
reduce. 

In  manslaughter  the  element  of  malice,  which  is  an  essential 
element  of  murder  in  the  second  degree,  is  wanting.  Wlien  a 
person  is  killed  under  the  influence  of  passion,  or  in  that  heat  of 
blood  produced  by  an  adequate  or  reasonable  provocation  and 
before  reasonable  time  for  the  blood  to  cool  and  reason  to  resume 
its  habitual  control,  and  is  the  result  of  temporary  excitement  by 
wbich    the    control    of    reason    was    disturbed,    ratber    than   by 


1628  INSTRUCTIONS  TO  JURY. 

wickedness  of  heart  or  cruelty  or  recklessness  of  disposition,  the 
crime  is  only  manslaughter.  But  the  provocation  must  have  been 
given  at  the  time  of  the  commission  of  the  offense  or  so  short  a 
time  before,  that  there  "as  no  time  for  the  blood  to  cool  and 
reason  to  resume  its  control  over  the  mind.  This  adequate  or 
reasonable  provocation  has  been  said  to  be  of  a  character  which 
will  commonly  produce  a  degree  of  anger,  rage,  resentment,  or 
terror  in  a  person  of  ordinary  temper  sufficient  to  render  the 
mind  incapable  of  reflection.  The  provocation  must  be  of  that 
kind  and  character  which  ordinarily  provokes  and  leads  to  or 
causes  a  great  degree  of  violence.  If  it  is  of  that  character  from 
which  a  great  degree  of  violence  does  not  ordinarily  follow,  then 
it  is  not  a  reasonable  provocation. 

Sec.  1862.     Provocation — All  surrounding  circumstances  to  be 
considered — Cooling-  time. 

The  jury  should  take  into  consideration  all  of  the  circum- 
stances preceding,  as  well  as  attending  the  commission  of  the 
alleged  homicide,  and  inquire  what  would  ordinarily  have  been 
the  conduct  of  men  in  general  under  like  circumstances,  and  if 
the  jury  should  find  that  the  defendant  did  no  more  than  might 
be  expected  of  men  in  general  under  like  provocation,  the  law, 
in  its  tenderness  to  human  fraility,  would  require  the  jury  to  say 
that  the  killing  was  only  manslaughter,  but  if  you  find  that  at 
the  time  of  the  killing  there  was  no  sufficient  provocation,  or  if 
you  find  there  was  sufficient  provocation  prior  to  the  killing,  had 
the  killing  taken  place  at  that  time,  which  would  have  reduced 
the  grade  of  the  crime  to  manslaughter,  that  a  sufficient  time  had 
elapsed  between  the  time  of  the  giving  of  the  provocation  and  the 
time  of  the  killing  for  the  blood  to  cool  and  reason  to  resume  its 
control  over  the  mind,  if  all  the  other  elements  are  proven,  as  I 
have  defined  them,  then  the  provocation  would  not  be  sufficient 
to  reduce  the  crime  to  manslaughter. 

Sec.  1863.     Malice  in  murder — Another  form. 

Malice  is  a  distinctive  feature  in  the  charge  of  murder,  for 
without  it  there  can  be  no  such  thing  as  murder.    It  relates  to 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1629 

the  moral  qualities  of  a  man's  acts.     Its  general  use  in  law  is 
to  express  an  act  done  without  any  sufficient  reason  where  the 
act  is  wrong  in  itself.     As  applied  to  a  case  of  homicide  it 
expresses  that  it   was  committed  by  the   accused  without  any 
adequate    reason    therefor    and    under    such    circumstances    of 
cruelty  as  to  evidence  a  mind  devoid  of  social  duty  and  fatally 
bent  on  mischief.    And  because  ordinarily  no  man  may  lawfully 
kill  another,  and  intentional  homicides  are  in  general  the  result 
of  malice  and  evil  passions,  or  proceed  from  a  heart  devoid  of 
social  duty,  in  every  case  of  intentional  homicide  not  otherwise 
explained   by    the    circumstances   it    is    presumed    in    the    first 
instance  that  the  slayer  was  actuated  by  malice,  and  the  burden 
is  placed  upon  him  of  showing  the  contrary,  unless  it  appears 
from  the  circumstances  adduced  against  him  by  the  state.     It  is 
not   necessary,    however,    that   he    should   do   this   by    evidence 
establishing  the  facts  on  which  he  relies  to  remove  the  inference 
of  malice   beyond   a  reasonable   doubt.     It   is  sufficient   if   the 
circumstances  on  which  he  relies  for  this  purpose  are  established 
by  a  preponderance  of  evidence.     If,  after  weighing  and  con- 
sidering the  evidence  offered  by  the  state,  in  connection  with 
that  offered  by  the  defendant,  the  jury  entertain  a  reasonable 
doubt  as  to  the  existence  of  malice,  they  should  resolve  that  doubt 
in  his  favor;  for  when  such  a  doubt  exists  after  hearing  and 
weighing  all  the  evidence  pro  and  con,  the  preponderance  must 
certainly  be  witb  the  defendant. 

The  absence  or  existence  of  malice  in  the  act  of  killing  marks 
the  distinction  between  murder  and  manslaughter.  For  though, 
under  our  statute,  there  may  be  malice  in  an  unintentional 
killing  amounting  to  manslaughter,  still  malice  in  such  case  is 
a  very  different  thing  from  malice  in  an  intentional  killing.  For 
tbe  term  malice  is  always  referable  to  the  nature  of  the  act  it  is 
intended  to  characterize;  a  malicious  beating  is  one  thing  and 
a  malicious  killing  is  another  and  different  thing.1 

i  Thad.   A.   Minshall,   J.,    in    the   GiddingB   case.     Malice   defined.     State   v. 
Turner,  W.  20;  State  v.  Gardner,  !»  W.  L.  J.  41 L 


1630  INSTRUCTIONS  TO  JURY. 

Malice  presumed  from  killing.  Davis  v.  State,  25  0.  S.  369;  State  v. 
Turner,  W.  20;  State  v.  Town,  W.  75.  Or  by  use  of  deadly  weapon 
the  jury  may  infer  it.  Erwin  v.  State,  29  0.  S.  186;  Clark's 
Crim.  Law,  p.   160,  note  126  and  cases. 

"The  idea  is  not  spite  or  malevolence  to  the  deceased  in  particular,  but 
evil  design  in  general,  the  dictate  of  a  wicked,  depraved,  and  malig- 
nant heart;  not  premeditated  hatred  or  revenge  towards  the  person 
killed,  but  that  kind  of  unlawful  purpose  which  if  persevered  in 
must  produce  mischief."  State  v.  Pike,  49  X.  H.  399;  Com.  v. 
Webster,  5  Cush.  295.  It  has  a  broader  meaning  in  this  connec- 
tion than  in  ordinary  language.  Commonly  it  signifies  hatred  to 
an  individual.  Malice  is  express  or  implied.  Express  when  it 
is  personal  malice  against  an  individual,  which  intends  to  take 
life.  Implied  is  an  evil  and  malignant  purpose  prompting  the  act 
resulting  in  death. 


Sec.  1864.     Malice— Another  form. 

"Malice  is  a  necessary  ingredient  in  both  murder  in  the  first 
and  murder  in  the  second  degree.  Unless  the  prisoner  was 
actuated  by  malice,  he  can  not  be  said  to  have  been  guilty  of 
murder  in  either  degree.  'It  is  not  easy  to  give  it  (malice)  any 
exact  definition.  It  relates  to  the  moral  qualities  of  a  man's 
acts.  Its  general  use  in  law  is  to  express  an  act  done  without 
any  sufficient  reason,  when  the  act  is  wrong  in  itself.  As  applied 
to  a  case  of  homicide  it  expresses  that  it  was  committed  without 
any  adequate  reason  therefor  and  under  circumstances  of  cruelty, 
as  to  evidence  a  mind  devoid  of  social  duty  and  fatally  bent  on 
mischief. '  * 

"Malice  in  a  legal  sense  does  not  necessarily  mean  spite,  hatred, 
ill  will,  revenge,  or  jealousy.  It  may,  however,  include  all  or  any 
of  these  qualities.  Whenever  a  wrongful  act  which  produces 
death  is  intentionally  done,  without  just  cause  or  excuse,  and  the 
purpose  to  kill  is  deliberated  upon  and  premeditated,  it  is,  in 
the  absence  of  mitigating  circumstances,  murder  in  the  first 
degree,"  2 

1  Giddings  case,  Judge  Minshall's  charge,  page  422. 

2  D.  F.  Pugh,  J.,  in  the  Elliott  case,  Franklin  Co.     Approved  by  Sup.  Ct. 

1   Bishop's  Cr.  Law,  sec.  429,  3. 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1631 

Sec.  1865.     "Deliberation"   and   "premeditation"  in  murder 
— Another  form. 

'"The  statute  defining  the  crime  is  in  these  words:  'If  any 
person  shall  purposely,  and  of  deliberate  and  premeditated 
malice,  kill  another,  every  such  person  shall  be  guilty  of  murder 
in  the  first  degree.'  The  words  purposely,  of  deliberate  and  pre- 
meditated malice,  as  applied  to  the  act  of  killing,  have  much 
meaning.  Purposely  implies  an  act  of  the  will ;  an  intention ;  a 
design  to  do  the  act.  It  presupposes  the  free  agency  of  the  actor. 
Deliberation  and  premeditation  require  action  of  the  mind. 
They  are  operations  of  the  intellectual  faculties,  and  require  an 
exercise  of  reason,  reflection,  and  decision."1 

4 '  By  the  term  '  deliberate, '  it  is  meant  that  the  purpose  to  kill 
was  considered.  It  means  that  the  purpose  to  kill  was  not  the 
sudden,  rash  conception  of  an  enraged  mind,  but  that  the  mind 
of  the  prisoner  was  sufficiently  cool  and  self-possessed  to  consider 
and  contemplate  the  nature  of  the  act  to  be  done.  The  term 
'premeditated,'  signifies  that  the  purpose  to  kill  was  thought 
about  and  considered  before  it  was  put  into  execution.  The 
term  'deliberation,'  does  not  mean  that  the  purpose  was  brooded 
over,  or  that  the  prisoner's  mind  was  absolutely  calm  and 
unruffled  at  the  time  he  deliberated.  It  is  only  necessary  that  it 
should  be  sufficiently  composed,  calm  and  undisturbed  to  admit 
of  reflection  and  consideration  of  the  design.  Nor  do  the  terms 
'deliberate'  and  'premeditate'  import  that  the  purpose  to  kill 
had  to  be  conceived,  deliberated  upon  and  premeditated  any 
specific  period  of  time  before  the  killing  was  done.  The  question 
is  not  how  long  did  the  prisoner  deliberate  and  premeditate,  but 
did  he  deliberate  and  premeditate  at  all? 

"Logically  and  legally  some  time  must  have  intervened 
between  the  conception  and  execution  of  the  purpose  to  kill, 
but  it  matters  not  how  short  the  time  was.  The  operations  of 
the  mind  are  so  swift  and  deed  follows  thought  so  quickly  1li.it 
the  deliberation  and  premeditation,  and  decision  and  act  may 
all  occur  in  a  very  brief  space  of  lime.  The  time  will  vary  as 
the  minds  and  temperaments  of  men  and  circumstances  under 


1632  INSTRUCTIONS  TO  JURY. 

which  they  are  placed  will  vary.  'Deliberation  and  premedita- 
tion for  a  moment,  as  well  as  for  a  week,  will  render  an 
intentional  killing  murder  in  the  first  degree.'  It  is  immaterial 
whether  the  deliberation  was  in  forming  the  purpose  to  kill,  or 
in  the  continuance  of  the  design  after  it  was  formed  until  it'  was 
executed.  The  distinctive  difference  between  murder  in  the  first 
and  murder  in  the  second  degree  is  that  there  is  no  deliberation 
and  premeditation  in  murder  in  the  second  degree.  There 
must  be  purpose  and  malice  as  in  murder  in  the  first  degree,  but 
the  malice  need  not  be  of  the  deliberate  and  premeditated 
character.  If  the  purpose  to  kill  appeared  and  existed  for  the 
first  time  in  the  prisoner's  mind  in  the  act  of  killing,  the  killing 
was  only  murder  in  the  second  degree.  So,  also,  if  the  intention 
to  kill  was  formed  and  executed  in  and  from  a  sudden  transport 
of  passion,  aroused  by  provocation,  but  the  provocation  was  not 
sufficient,  in  law,  to  reduce  the  killing  from  murder  to  man- 
slaughter, it  would  only  be  murder  in  the  second  degree."2 

i  Judge  Birckard  in  Clark  v.  State,  12  0.  495. 

2  D.  F.  Pugh,  J.,  in  the  Elliott  case.     Approved  by  Supreme  Court. 

Deliberation  and  premeditation  defined.  Turner  v.  State,  W.  20;  Shoe- 
maker v.  State,  12  0.  43;  Burns  v.  State,  3  W.  L.  G.  323.  See 
Bishop's  Cr.  Law,  sec.  728. 

Sec.  1866.     "Purposely,"  "unlawful"  and  "feloniously." 

Under  the  first  count  it  is  essential  to  the  conviction  of  murder 
in  the  first  degree,  that  it'  appear  that  the  defendant,  in  the 
manner  and  form  charged,  at  the  time  and  place  charged,  killed 
the  said  H.  unlawfully,  feloniously,  purposely,  and  of  deliberate 
and  premeditated  malice.  An  act  is  done  unlawfully  when  done 
in  violation  of  the  law ;  to  do  an  act  feloniously  is  to  do  it" 
criminally.  The  word  "purpose"  is  used  in  the  statute  in  its 
plain  and  ordinary  signification.  It  means  an  act  done  inten- 
tionally, not  accidentally  or  by  mischance.  It  imports  an  act  of 
the  will,  intention,  a  design  to  do  an  act.  Ordinarily  the  purpose 
to  kill  is  to  be  gathered  or  deduced  from  the  circumstances  under 
which  the  killing  is  done.  If  the  instrument  used  in  inflicting 
the  mortal  wound  was  a  deadly  weapon,  and  it  is  willfully  and 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1633 

in  a  manner  purposely  calculated  to  destroy  life,  the  jury  may 
infer  the  intent  or  purpose  to  kill  by  such  use  of  the  weapon.1 
It  is  a  general  principle  that  what  a  man  does  willfully  he 
intended  to  do,  and  intends  the  natural  consequences  of  his 
voluntas  act,  unless  the  circumstances  in  this  particular  case 
show  the  absence  of  such  intent.2 

i  Bishop's  Cr.  Law,  sec.  680  and  cases.  An  instruction  that  if  the  jury 
'"find  from  the  evidence  that  the  defendant  used  a  deadly  weapon 
in  this  case,  and  that  death  ensued  from  the  use  of  such  deadly 
weapon,  then  the  law  raises  the  presumption  of  malice  in  the  de- 
fendant, and  also  an  intent  on  liis  part  to  kill  the  decedent,"  was 
held  erroneous,  29  0.  S.  192. 

=  Wm.  R.  Day,  J.,  State  v.  Webster,  Trumbull  Co.  Com.  Pleas. 

The  "purpose"  in  general  is  proved  from  circumstances.  Gardner  v. 
State,  W.  392.     See  8  0.  S.  98,  8  0.  S.  306,  10  O.  S.  4.-)!). 

Sec.  1867.     Proof  of  purpose  to  kill,  malice,  deliberation  and 
premeditation. 

Now  as  to  the  proof  of  the  purpose  to  kill,  of  malice,  delibera- 
tion, and  of  premeditation.  Intention  and  malice  are  of  the 
heart  and  mind.  Neither  was  probably  ever  proved  to  a  jury 
by  direct,  positive  evidence.  The  only  possible  direct  witness  to 
prove  that  the  prisoner's  purpose  was  to  kill  0.  and  that  he  was 
actuated  by  malice  was  the  prisoner  himself,  and  if  he  had  meant 
to  testify  that  his  mind  and  heart  were  in  that  condition  before 
and  at  the  time  0.  was  killed,  he  would  have  plead  guilty,  which 
he  did  not  do,  but  denied  all  of  the  incriminating  circumstances 
which  the  state's  evidence  tended  to  prove.  The  existence  or 
absence  of  malice  and  of  purpose  to  kill  is  an  inference  which 
must  be  drawn  by  you  from  all  the  facts  in  the  case.  The 
emotions  of  the  prisoner's  heart  and  the  operations  of  his  mind 
at  the  times  mentioned  can  only  be  revealed  to  you  by  his  acts 
and  his  declarations.  You  have  no  power  to  ascertain  the  exact 
condition  of  his  mind  and  heart  a1  the  limes  in  question;  the 
best  you  can  do  is  to  infer  what  it  was  from  liis  acts  and  declara- 
tions. Tn  determining  this  you  should  also  consider  what  he 
has  said  here  on  that  question  in  his  testimony,  if  you  believe 
him,  and  also  all  the  other  evidence  bearing  on  this  question.     I 


1634  INSTRUCTIONS  TO  JURY. 

have  already  said  to  you  that  a  person  is  presumed  to  intend 
what  he  does.  When  a  man  performs  an  act  which  he  knows 
will  produce  a  particular  result,  from  our  common  experience  he 
is  presumed  to  have  anticipated  and  intended  that  particular 
result.  The  intention  to  kill,  malice,  deliberation,  and  premedita- 
tion may  be  proved  by  circumstantial  evidence.  The  circum- 
stances from  which  they  may  be  inferred  are  various.  They  may 
consist  of  previous  threats  of  the  prisoner  to  kill  the  man  who 
was  killed,  preparation  of  weapons,  search  for  the  man  who  was 
afterwards  killed,  absence  of  provocation  just  before  and  at  the 
time  of  the  killing,  dangerous  nature  of  the  weapon  used  to  kill,1 
the  manner  of  using  it,  and  the  subsequent  expressions  of  gratifi- 
cation by  the  prisoner  over  the  killing  of  the  deceased,  if  you 
find  such  facts  have  been  proved.  It  is  liardly  necessary  to  add 
that  the  purpose  to  kill,  malice,  deliberation,  and  premeditation 
are  all  material  facts  and  require  to  be  found  proved,  in  a  case 
like  this,  beyond  a  reasonable  doubt.2 

i  Use  of  deadly  weapon  does  not  raise  a  presumption  of  malice  and  intent 
to  kill,  but  the  jury  must  consider  all  the  circumstances.  Erwin 
v.  State,  29  O.  S.  186. 

2  D.  F.  Pugh,  J.,  in  the  Elliott  case. 

Sec.  1868.     Person  presumes  reasonable  consequences  of  his 
acts. 

But  the  law  presumes  that  every  person  intends  the  natural, 
probable,  and  reasonable  consequences  of  his  own  acts  inten- 
tionally done.  "Wrongful  acts,  knowingly  or  intentionally 
committed,  can  neither  be  justified  nor  excused  on  the  ground  of 
innocent  intent.  The  color  of  the  act  determines  the  complexion 
of  the  intention."  To  illustrate  part  of  this  rule,  if  a  person 
voluntarily  or  intentionally  does  an  act,  or  aids,  assists,  and 
encourages  another  to  do  an  act,  whose  natural,  reasonable  and 
probable  tendency  is  to  destroy  another's  life,  the  conclusion  may 
be  drawn  that  he  intended  to  destroy  that  life.1 

]  D.  F.  Pugh,  J.,  in  the  Elliott  case.  "As  a  rule  of  evidence,  a  party 
is  presumed  to  intend  the  natural  consequences  of  his  own  acts." 
Robbins  v.  State,  8  O.  S.  131. 


HOMICIDE — MURDER  AND   MANSLAUGHTER.  1635 

Sec.  1889.     Manslaughter — What  is — Provocation 

What  are  the  circumstanees  which  will  repel  the  imputation 
and  inference  of  malice  that  grows  out  of  an  intentional  killing, 
and  will  reduce  the  offense  from  murder  to  manslaughter? 

The  absence  of  malice  is  the  trait  of  a  case  of  homicide  which 
makes  it  manslaughter. 

When  a  person  is  killed  "under  the  influence  of  passion, 
or  in  the  heat  of  blood,  produced  by  an  adequate  or  reasonable 
provocation,  and  before  a  reasonable  time  for  the  blood  to  cool 
and  reason  to  resume  its  habitual  control,  and  is  the  result  of 
temporary  excitement  by  which  the  control  of  reason  was  dis- 
turbed rather  than  by  wickedness  of  heart,  or  cruelty,  or  reckless- 
ness of 'disposition, "  it  is  only  manslaughter.1 

When  the  killing  is  done  under  such  circumstances,  the  law 
in  its  leniency  imputes  it  to  be  the  infirmity  of  human  nature 
and  not  to  the  malignity  of  the  heart. 

One  of  the  established  rules  of  law  is  that  the  act  of  killing, 
or  aiding  or  assisting  in  killing,  to  be  manslaughter  must  be 
directly  caused  by  the  passion  arising  out  of  the  provocation.  It 
was  not  sufficient  that  the  prisoner's  mind  was  agitated  by 
passion  arising  from  some  other  provocation,  or  provocation 
given  by  some  other  person. 

Another  rule  is  that  the  provocation  must  have  been  given  at 
the  time  of  the  commission  of  the  offense,  or  so  short  a  time  before 
that  there  was  not  time  for  the  blood  to  cool  and  reason  to  resume 
her  empire  over  the  mind. 

It  has  been  said  that  it  (provocation)  is  whatever  will 
"commonly  produce  a  degree  of  anger,  rage,  resentment,  or 
terror  in  a  person  of  ordinary  temper,  sufficient  to  render  the 
mind  incapable  of  reflection."2 

The  provocation  must  be  in  itself  "calculated  to  provoke  a 
greal  degree  of  resentment,"  and  such  as  ordinarily  guper- 
induces  a  great  degree  of  violence.  If  it'  is  so  slight  and  trivial 
that  a  greal  degree  of  violence  does  not  usually  follow,  it  is  not 
reasonable  provocation. 


,1636  INSTRUCTIONS  TO  JURY. 

It  has  also  been  said  by  an  able  judge  that,  in  a  case  like  this, 
the  jury  "should  take  into  consideration  all  the  circumstances 
preceding,  as  well  as  attending  the  commission  of  the  homicide, 
and  inquire  what  would  ordinarily  have  been  the  conduct  of 
men  in  general  under  like  circumstances,"  and  that  should  the 
jury  "find  that  the  defendant  did  no  more  than  might  be 
expected  from  men  in  general  under  like  provocation,  the  law 
in  its  tenderness  to  human  frailty  would  require ' ' 3  the  jury  to 
say  that  the  killing  was  only  manslaughter.4 

i  Moher  v.  The  People,   10  Mich.  212. 

2  13  Tex.  App.  563. 

3  Gidding  ease,  424. 

-*  D.  F.  Pugh,  J.,  in  the  Elliott  case. 

Sec.  1870.  Manslaughter — Person  present  doing  no  overt  act 
not  aider. 

"If  the  jury  find  from  the  evidence  that  the  principal  named 
in  the  indictment  did  take  the  life  of  the  deceased,  but  did  it  in 
a  sudden  quarrel,  or  in  the  heat  of  passion,  his  offense  would  be 
but  manslaughter;  and  if  you  further  find  that  the  defendant 
did  no  overt  act  and  took  no  active  part  in  the  killing,  but  was 
merely  present  when  the  quarrel  arose  or  fight  began,  you  can 
not  in  such  case  find  him  guilty  as  an  aider  and  abettor  of  the 
principal. ' n 
i  Goins  v.  State,  46  O.  S.  457. 

Sec.  1871.  Self-defense — Whether  defendant  believed  he  was 
about  to  be  robbed — Burden  of  proof  on 
defendant. 

Evidence  has  been  offered  tending  to  show  that  the  defendant 
assaulted  the  deceased  with  a  club  or  some  other  instrument 
which  resulted  in  his  death.  Evidence  has  also  been  offered 
tending  to  show  in  the  affray  which  occurred  on  that  occasion,  the 
deceased  first  attacked  and  assaulted  the  defendant,  and  sought 
by  force  to  take  his  money  from  him,  or  rob  him,  and,  in  order 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1637 

to  prevent  the  assault  and  taking  his  money  by  W.,  one  or  more 
of  the  defendant's  associates,  who  were  with  him,  struck  "W. 
with  a  club  or  other  instrument  and  beat  him  off  the  defendant, 
and  that  the  defendant  did  not  strike  W.  Whether  or  nut  the 
facts  or  any  of  them  just  related,  are  proved  by  the  evidence, 
are  matters  for  your  determination.  If  you  find  that  W.  first 
attacked  the  defendant,  and  sought  forcibly  to  take  his  money 
from  him,  or  to  rob  him,  and  that  the  defendant,  or  his  said 
associates  who  saw  the  attack,  in  good  faith  believed  and  had 
reasonable  ground  to  believe  that  defendant  was  being  assaulted 
with  a  view  of  feloniously  taking  his  money  and  robbing  him, 
or  that  the  defendant  was  in  imminent  danger  of  death  or  great 
bodily  harm,  the  defendant  or  one  or  more  of  his  said  associates 
had  the  right  to  use  the  necessary  force  to  repel  the  attack  upon 
defendant  and  to  prevent  the  unlawful  taking  of  his  money, 
even  to  the  taking  of  assailant's  life.  And  this  is  so,  even  though 
the  defendant,  if  he  struck  the  fatal  blow,  or  one  or  more  of  his 
associates,  if  they  or  any  of  them  did  it,  were  mistaken  as  to  the 
felonious  attempt  to  rob  the  defendant,  or  as  to  the  existence  or 
imminence  of  the  danger. 

You  will,  therefore,  inquire,  if  you  find  that  the  defendant 
struck  the  fatal  blow  or  blows,  whether  or  not  the  defendant  at 
the  time,  in  the  careful  and  proper  use  of  his  faculties,  in  good 
faith  believed  and  had  reasonable  ground  to  believe  that  a 
felonious  assault  was  being  made  upon  him  by  W.  to  rob  him  of 
his  money,  or  that  he  was  in  imminent  danger  of  death  or  great 
bodily  harm,  and  that  his  only  means  of  preventing  such  assault 
or  escape  from  such  danger,  was  by  taking  the  life  of  the  said  W. 
If  defendant  so  believed,  and,  under  all  the  circumstances  then 
surrounding  him,  he  had  reasonable  ground  to  so  believe,  then 
you  should  find  that  he  was  justified  in  taking  the  life  of 
decedent  and  your  verdict  should  be  not  guilty.  You  will 
observe,  however,  that  the  mere  belief  of  defendant,  if  he  had 
such,  was  not  sufficient  to  justify  the  taking  of  decedent's  life, 
but  to  that  must  be  added  that  he  had  reasonable  grounds  for 
such  belief. 


1638  INSTRUCTIONS  TO  JURY. 

In  regard  to  the  amount  of  force  necessary  for  such  purpose, 
the  law  does  not  measure  nicely  the  degree  of  force  which  may 
be  employed  under  such  circumstances,  and  if  more  force  was 
used  than  was  necessary,  the  law  does  not  hold  one  responsible 
for  it  unless  it  was  so  disproportionate  to  the  apparent  danger 
as  to  show  wantonness,  revenge,  or  malicious  purpose  to  injure 
the  assailant. 

If  you  find,  however,  that  "W.  was  not  the  first  assailant, 
or  did  not  attack  the  defendant  with  the  view  of  feloniously 
taking  his  money  from  him,  or  robbing  him,  or  causing  his  death, 
or  producing  great  bodily  harm  upon  him,  and  that  the  defend- 
ant neither  believed,  nor  had  reasonable  ground  to  believe,  that 
W.  made  such  assault  or  attack  upon  him,  then  the  defendant's 
right  of  self-defense  can  not  avail  him. 

The  burden  of  establishing  the  defense  of  self-defense  is  upon 
the  defendant,  and  to  entitle  him  to  an  acquittal  upon  this 
ground,  this  defense  must  be  established  by  a  preponderance, 
that  is  to  say,  the  greater  weight  of  the  evidence. 

If,  however,  upon  the  whole  testimony,  including  the  evidence 
relating  to  self-defense,  you  have  a  reasonable  doubt  as  to  the 
defendant's  guilt,  either  of  murder  in  the  second  degree  or  of 
manslaughter,  or  of  assault  and  battery,  or  of  simply  assault,  it 
will  be  your  duty  to  acquit  the  defendant. 

Evidence  has  been  introduced  as  to  the  reputation  of  the 
deceased  for  honesty.  The  object  of  this  evidence  is  to  reflect 
upon  the  question  of  W.  's  having  attacked  the  defendant  with  a 
Adew  to  feloniously  take  from  him  his  money  or  to  rob  him. 
However,  if  you  find  that  W.  had  a  good  reputation  for  honesty 
prior  to  the  alleged  affray,  nevertheless,  if  you  find  that  W.  did 
feloniously  assault  the  defendant  with  the  view  of  taking  his 
money  or  robbing  him,  and  the  defendant  did  defend  himself 
against  such  assault,  then  W.'s  prior  reputation  for  honesty  will 
avail  nothing.1 
i  State  v.  Orris,   Franklin   Co.   Com.  Pleas,  Kinkead,  J. 


HOMICIDE — MURDER    VXD    MANSLAUGHTER.  1639 

Sec.  1872.  Self-defense  in  self-protection  against  riotous 
strikers  attempting  to  stop  defendant  from 
working. 

It  is  claimed  by  defendant,  however,  1st.  That  such  killing 
was  justifiable  on  his  part  in  order  to  protect  himself  from  being 
killed,  or  from  great  bodily  harm.  2d.  That,  at  the  time  the 
fatal  shot  was  fired,  by  reason  of  the  injuries  he  had  received 
at  the  hands  of  the  mob,  his  reason  was  gone,  he  had  lost  the 
control  of  his  faculties,  and  was  incapable  of  forming  an  inten- 
tion to  commit  a  crime;  in  other  words,  he  claims  that  he  was 
temporarily  insane,  and  did  not  understand  and  appreciate  the 
nature  of  what  he  was  doing  and  that  it  was  wrong.  1st.  As 
to  the  question  of  self-defense.  It  appears  in  evidence  in  this 
case  that  the  defendant  was  employed  by  a  contractor  to  fill  the 

trenches  in  the  Town  of .     It  also  appears  in  evidence  that 

the  deceased,  A.  S.,  and  a  number  of  other  laborers,  who  had 
been  previously  employed  as  trench  diggers,  had  gotten  into  a 
dispute  with  their  employer  and  had  gone  on  a  strike,  and  it 
was  their  combined  purpose  to  permit  no  other  person  to  perform 
any  labor  upon  the  contract  till  the  matter  in  dispute  between 
them  and  their  employer  was  settled.  And  pursuant  to  this 
purpose,  they  went  to  the  place  defendant  was  employed  and 
ordered  him  to  stop  work.  This,  it  seems,  he  refused  to  do.  The 
defendant  had  a  right  to  solicit  employment  of  the  contractor 
and  was  guilty  of  no  wrong  when  he  accepted  such  employment 
and  entered  upon  the  discharge  of  his  duties;  (and  I  say  to  you) 
the  deceased,  A.  S.,  and  those  engaged  with  him,  when  they 
assembled  and  went  to  the  defendant  and  ordered  him  to  cease 
work,  became  rioters  and  were  guilty  of  an  infraction  of  the 
laws  of  Ohio.  They  had  no  right  to  demand  that  the  defendant 
cease  work,  and  he  was  under  no  obligations  to  obey  them  when 
they  did  so  order  him.  And  if  they  assaulted  him  to  compel  him 
to  desist,  it  was  his  right  to  repel  the  assault  with  force.  TTe 
was  under  no  obligation  to  retreat;  and  he  had  a  right  to  use 
sufficient  force  to  compel  them  to  desist  from  their  assaults 
upon  him — even  by  taking  the  life  of  his  assailants,  or  some  of 


1640  INSTRUCTIONS  TO  JURY. 

them,  if  that  was  apparently  necessary  in  order  to  preserve  his 
own  life,  or  to  protect  himself  from  great  bodily  harm  at  the 
hands  of  the  mob. 

It  is  claimed,  however,  on  the  part  of  the  state,  that  this 
shooting  was  done  by  defendant  out  of  a  spirit  of  malice,  wanton- 
ness, and  revenge,  growing  out  of  the  punishment  he  had  received 
at  the  hands  of  the  mob. 

(a)  Burden  of  proving  self-defense  by  preponderance.  Before 
proceeding  further,  I  wish  to  say,  however,  that  the  burden  is 
on  the  defendant  to  prove  to  you  by  a  preponderance  of  evi- 
dence, either  that  he  was  justified  in  killing  the  deceased,  or  that 
he  had  temporarily  lost  the  use  of  his  faculties  and  did  not 
appreciate  and  understand  the  nature  of  the  act  he  was  per- 
forming. By  a  preponderance  of  evidence,  I  mean  the  greater 
weight  of  the  testimony,  or,  to  state  it  in  another  form,  if,  after 
considering  the  evidence  in  all  its  bearings,  you  are  of  the  opinion 
that  the  probabilities  are  in  favor  of  the  claims  made  on  the  part 
of  the  defendant,  either  that  he  was  justified  in  doing  the 
shooting,  or  that  he  had  temporarily  lost  the  use  of  his  faculties 
so  that  be  did  not  understand  and  appreciate  the  nature  of  the 
act  he  was  performing,  then  the  preponderance  of  the  evidence 
would  be  made  out,  and  your  verdict,  in  that  event,  must  be  not 
guilty.  But  if  the  evidence  was  equally  balanced,  or  the  greater 
weight  is  with  the  state,  then  the  defendant  would  not  have  the 
preponderance  of  evidence  upon  those  claims. 

As  to  the  question  of  self-defense.  The  defendant  had  a 
right  honestly  and  in  good  faith  to  solicit  employment,  and  he 
had  a  right  to  engage  in  that  employment,  even  though  he  had 
information  that  it  was  the  purpose  of  the  strikers  to  stop  all 
persons  from  working. 

Honest  labor  is  a  laudable  employment,  and  no  person  shall 
be  discouraged  from  engaging  therein.  Not  only  did  he  have  a 
right  to  seek  employment  and  engage  therein  notwithstanding 
the  threats  of  the  mob,  but  he  had  a  right  to  arm  himself  for 
his  own  protection,  however,  with  this  qualification  always  in 
view:  the  employment  must  have  been  sought  honestly  and  in 


HOMICIDE MURDER  AND    -MANSLAUGHTER.  1641 

good  faith,  with  the  single  purpose  in  view  of  performing  the 
labor  for  the  wages  agreed  upon,  and  he  must  not  have  sought 
employment  and  engaged  therein  as  a  mere  subterfuge  for  the 
purpose  of  inciting  an  attack  from  the  mob.  No  person  must 
seek  and  court  a  controversy,  for  if  he  does,  he  must  take  the 
consequences  flowing  therefrom.  Evidence  has  been  offered  on 
the  part  of  the  defendant  tending  to  show  that  when  he  turned 
over  his  scraper,  started  to  hitch  a  tug,  and  resume  work,  one 
T.,  a  member  of  the  mob,  attacked  him,  and  that  he  was 
immediately  set  upon  by  other  members  of  the  mob  with  deadly 
Aveapons,  and  it  is  claimed  on  the  part  of  the  defense  that  he  was 
compelled  to  use  a  deadly  weapon  in  order  to  save  his  own  life, 
or  to  protect  himself  from  great  bodily  harm.  If  the  defendant 
did  not  purposely  and  intentionally  bring  on  the  assault,  then 
I  say,  if,  in  the  careful  and  proper  use  of  his  faculties,  he 
believed  and  had  reasonable  ground  to  believe  that  he  was  in 
imminent  danger  of  death  or  great  bodily  harm,  and  that  his 
only  means  of  escape  was  by  taking  the  life  of  his  assailants,  or 
some  of  them,  he  was  justified  in  taking  the  life  of  the  deceased, 
A.  S.,  even  though  in  fact  he  was  mistaken  as  to  the  existence  of 
danger.  In  times  of  great  excitement  and  apparent  danger, 
where  a  person  is  called  upon  to  act  quickly,  the  same  degree 
of  prudence  and  judgment  is  not  required  of  him  that  would 
be  required  had  he  an  opportunity  to  deliberate  upon  his  act. 
If,  under  the  rules  I  have  given  you,  you  find  that  the  defendant 
was  justified  in  firing  the  fatal  shot  which  resulted  in  the  death 
of  A.  S.,  you  need  go  no  further,  but  your  verdict  will  be  not 
guilty.  If,  however,  you  find  the  defendant  was  not  justified 
under  the  rules  already  announced  in  taking  the  life  of  A.  S., 
then  you  will  inquire  further.  Had  the  defendant  so  lost  the 
use  of  his  faculties,  by  reason  of  the  injuries  he  had  received  at 
the  hands  of  the  mob,  that  he  did  not  appreciate  and  understand 
the  nature  of  the  act  he  was  performing,  and  thai  it  was  wrong? 
Tf  lie  was  in  such  condition  of  mind  by  reason  of  the  injuries  he 
had  received  as  to  deprive  him  of  the  ability  t<>  reason  and  to 
consider,  and  to  know  Avhat  he  was  doing,  and  the  fatal  shot 


1642  INSTRUCTIONS  TO  JURY. 

was  fired  while  he  was  in  such  condition,  then  he  would  be  guilty 
of  no  crime,  and  your  verdict  should  be  not  guilty.  He  is  not 
entitled  to  an  acquittal,  however,  on  the  ground  of  mental 
incapacity,  if  at  the  time  of  the  shooting  he  had  sufficient  mental 
capacity  and  reason  left  to  enable  him  to  distinguish  between 
right  and  wrong,  and  understand  and  appreciate  the  nature  of 
his  act  and  his  relation  to  the  party  injured.1 
i  Sheets,  J.,  in  State  v.  Van  Skiver,  Auglaize  Co.  Coin.  Pleas. 

Sec.  1873.    Self-defense,  in  ejecting  one  from  saloon. 

If  the  jury  should  be  of  the  opinion  that  although  the  defend- 
ant M.  undertook  to  eject  the  deceased  and  others  from  the 
saloon,  and  that  while  either  or  both  were  in  the  act  of  ejecting 
the  deceased,  that  the  deceased  resisted  and  made  a  violent  attack 
upon  the  defendant,  you  will  then  determine  whether  the  defend- 
ant alone,  or  acting  jointly  with  M.,  took  the  life  of  the  deceased 
in  the  exercise  of  what  is  known  in  law  as  the  right  of  self- 
defense. 

When  a  person  in  the  lawful  pursuit  of  his  business,  and  with- 
out blame,  is  violently  assaulted  by  one  who  manifestly  and 
maliciously  intends  and  endeavors  to  kill  him,  the  person  so 
assaulted,  without  retreating,  although  it  be  in  his  power  to  do 
so  without  increasing  his  danger,  may  kill  his  assailant  to  save 
his  own  life  or  prevent  enormous  bodily  harm. 

Homicide  is  justifiable  on  the  ground  of  self-defense,  where 
the  slayer,  in  the  careful  and  proper  use  of  his  faculties,  in  good 
faith  believes,  and  has  reasonable  ground  to  believe,  that  he 
is  in  imminent  danger  of  death  or  great  bodily  harm,  and  that 
his  only  means  of  escape  from  such  danger  will  be  by  taking  the 
life  of  his  assailant,  although  in  fact  he  is  mistaken  as  to  the 
existence  or  imminence  of  the  danger. 

Tn  considering  the  question  as  to  whether  or  not  under  the 
facts  and  circumstances  as  shown  by  the  evidence  in  this  case, 
the  defendant  was  acting  in  defense  of  his  own  life  or  body,  the 
jury  will  be  called  upon  to  determine  who  was  the  aggressor,  that 
is,  whether  the  deceased  M.  was  the  aggressor  or  whether  the 


HOMICIDE MURDER  AND   MANSLAUGHTER. 


1643 


defendant  himself  was  the  one  who  was  responsible  for  the 
beginning  of  the  trouble.  If  the  jury  should  be  of  the  opinion 
from  the  evidence  that  the  defendant  was  the  aggressor  and 
that  he  undertook  to  do  injury  to  the  deceased  without  just 
cause,  then  you  will  be  called  upon  to  apply  the  following  rule 
of  law:  There  is  a  distinction  between  the  case  of  a  person 
driven  to  the  necessity  of  taking  life  in  self-defense  in  a  conflict- 
provoked  and  incited  by  his  own  wrong  and  that  of  one  reduced 
to  such  necessity  in  a  conflict  that  was  neither  sought  nor  pro- 
voked by  him.  In  the  case  when  a  party  assaulted  is  in  the 
wrong,  he  must,  before  taking  the  life  of  his  assailant,  to  save 
his  own  life  or  to  avoid  great  bodily  injury,  flee  as  far  as  he 
conveniently  can,  either  by  reason  of  some  wall  or  other  impedi- 
ment, or  as  far  as  the  fierceness  of  the  assault  will  permit,  for 
it  may  be  so  fierce  as  to  not  allow  him  to  yield  a  step  without 
manifest  danger  to  his  life  or  great  bodily  harm,  and  then,  in 
his  defense,  he  may  kill  his  assailant  instantly. 

If  on  the  other  hand,  the  jury  should  be  of  the  opinion  that 
the  defendant  in  this  case  was  in  pursuit  of  his  right  to 
reasonably  eject  the  deceased  from  the  room  for  some  disorder, 
and  that,  therefore,  he  was  not  in  the  wrong,  or  he  neither 
provoked  nor  incited  the  conflict,  but  was  assailed  while  in  the 
pursuit  of  this  purpose  to  eject  the  deceased  from  the  room, 
then  the  jury  are  instructed  that  the  defendant  had  the  right, 
without  retreating  a  step,  to  kill  his  assailant,  if  necessary,  to 
protect  his  own  life  or  to  avoid  grievous  bodily  harm. 

The  danger  must  in  either  case  be  actual  or  apparent,  and 
the  party  killing  must  have  honestly  believed  that  he  was  in 
danger  of  losing  his  own  life,  or  of  suffering  some  great  bodily 
harm,  before  killing  his  assailant.  And  it  is  not  enough  that 
the  party  killing  honestly  believed  that  there  was  imminent 
danger  to  himself,  but  the  circumstances  must  have  been  such 
as  would  have  afforded  a  reasonable  ground  for  such  belief.  Of 
this  the  jury  must  judge  from  the  circumstances  as  developed 
by  the  testimony.  Tf  the  appearances  were  such  as  would  have 
ahirmed  a  man  of  ordinary  firmness  and  would  have  impressed 


1644  INSTRUCTIONS  TO  JURY. 

him  that  such  danger  was  imminent,  and  if  the  assailed  party 
honestly  believed  such  to  be  the  case,  it  is  not  material  whether 
the  danger  was  real  or  not. 

Thus,  to  make  the  application  to  this  case,  if  you  should  be 
of  the  opinion  that  the  deceased  had  a  revolver  in  his  hand ;  that 
there  was  an  apparent  purpose  on  his  part  to  use  it  on  the  body 
of  the  defendant,  and  that  the  defendant,  as  would  any  man  of 
ordinary  firmness,  then  honestly  believed  that  the  deceased 
intended  to  instantly  kill  or  seriously  wound  him,  in  such  case 
the  jury  will  determine  whether  or  not  the  defendant  had  a 
reasonable  ground  to  believe  that  his  life  was  in  danger,  and 
whether  or  not  he  took  the  life  of  the  deceased  in  defense  of  his 
body  or  his  own  life. 

The  burden  of  establishing  the  defense  of  self-defense  is  upon 
the  defendant  and  to  entitle  him  to  an  acquittal  upon  this  ground, 
this  defense  must  be  established  by  a  preponderance,  that  is,  by 
the  greater  weight  of  the  evidence. 

The  law  does  not  measure  nicely  the  degree  of  force  which 
may  be  employed  by  a  person  attacked,  and,  if  he  uses  more 
force  than  is  necessary,  he  is  not  responsible  for  it,  unless  it  is  so 
disproportionate  to  his  apparent  clanger  as  to  show  wantonness, 
revenge  or  a  malicious  purpose  to  injure  the  assailant. 

The  defendant  claims  that  the  deceased  used  vile  and  reproach- 
ful language  toward  him;  that  he  insulted  him,  and  was  dis- 
orderly in  his  house.  If  you  find  from  the  evidence  that  this  is 
true,  the  defendant,  who  was  conducting  a  place  of  public 
resort,  would  have  the  right  to  put  the  deceased  out  of  his  house, 
or  order  him  out  of  his  house,  but  he  would  only  have  the  right 
to  use  ordinary  force,  or  such  force  as  was  necessary  to  eject  the 
deceased  from  his  house.  The  right  to  order  the  deceased  out  or 
the  right  to  put  the  deceased  out  does  not  carry  with  it  the  right 
to  kill  the  deceased,  if  he  refused  to  go  out.  This  right  of  the 
defendant  to  eject  the  deceased  from  his  house  does  not  in  any 
manner  change  the  rule  of  self-defense  or  the  right  to  kill,  as  T 
have  given  it  to  you. 

If  you  find  from  the  evidence  that  defendant  used  force  and 
violence   disproportionate  to  the  defendant's   apparent  danger, 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1645 

in  attempting  to  eject  said  M.  from  the  saloon,  if  such  yon  find 
and  more  force  than  the  circumstances  show  and  indicate  to  be 
necessary,  and  if  there  was  resistance  by  said  M.,  or  if  there  was 
an  attack  by  said  M.,  or  by  said  M.  and  another  person,  and  if  the 
circumstances  do  not  show  any  reasonable  apprehension  of  loss 
of  life,  or  of  great  bodily  harm  to  the  defendant  by  such 
resistance  or  attack,  if  any,  by  said  M.,  or  by  said  M.  and  another 
person,  on  defendant,  and  if  under  such  circumstances  defendant 
shot  and  killed  said  M.,  then  I  charge  you  that  the  defendant  was 
not  justified  in  taking  the  life  of  said  M.,  and  if  you  find,  under 
the  instructions  heretofore  given  you.  that  the  defendant  shot 
and  killed  said  M.  purposely  and  maliciously,  with  intent  to  kill 
said  M.,  the  defendant  would  be  guilty  of  murder  in  the  second 
degree,  and  you  should,  in  that  event,  so  find  your  verdict.  Tf 
you  find  from  the  evidence,  and  under  the  instructions  I  have 
given  you.  that  said  M.  came  to  his  death  by  means  of  a  shot 
discharged  from  a  revolver,  unlawfully  but  without  malice, 
pointed  or  aimed  by  the  defendant  at  or  towards  said  M.,  then, 
and  in  that  event,  the  defendant  would  not  be  guilty  of  murder 
in  the  second  degree,  but  he  would  be  guilty  of  manslaughter, 
and  you  should  so  find  by  your  verdict.1 
1  State   r.  Simi,  Franklin  Co.  Com.  Pleas.  Kinkead,  J. 

Sec.  1874.     Self-defense — What  constitutes — Another  form. 

Under  certain  defined  circumstances,  the  laws  of  God  and  man 
give  the  right  to  take  life  in  self-defense. 

"When  a  person  in  the  lawful  pursuit  of  his  business,  and 
without  blame,  is  violently  assaulted  by  one  who  manifestly 
and  maliciously  intends  and  endeavors  to  kill  him,  the  person 
so  assaulted,  without  retreating,  although  ii  lie  in  his  power 
to  do  so  without  increasing  his  danger,  may  kill  his  assailant  to 
save  his  own  life,  or  prevent  enormous  bodily  harm."1 

"Homicide  is  justifiable  on  the  ground  of  self-defense,  where 
the  slayer,  in  the  careful  and  proper  use  of  his  faculties,  hmia 
'<<!<  believes,  and  has  reasonable  ground  to  believe  that  he  is  in 
imminent  danger  of  death  or  great  bodily  harm,  and  that  his 


1646  INSTRUCTIONS  TO  JURY. 

only  means  of  escape  from  such  danger  will  be  by  taking  the 
life  of  his  assaliant,  although  in  fact  he  is  mistaken  as  to  the 
existence  or  imminence  of  the  danger. ' ' 2 

The  claim  of  self-defense  implies,  presupposes,  that  0.  was 
intentionally  killed.  It  is  plain  that  when  one  kills  another  in 
self-defense  he  intends  to  do  it,  but  it  would  not  be  unlawful 
killing,  although  intentionally  done. 

Before  you  can  acquit  the  prisoner  on  the  ground  of  self- 
defense,  you  must  be  satisfied  that  several  fact's,  which  I  shall 
now  enumerate  and  explain,  were,  by  the  evidence,  proved. 

1.  You  must  be  satisfied  that  0.  was  the  assailant;  that  he 
began  the  shooting. 

2.  You  must  be  satisfied  that  0.  manifestly  and  maliciously 
intended  and  endeavored  to  kill  or  do  great  bodily  harm  to  the 
prisoner  and  P.  E.,  or  one  of  them.  Did  0.  intend  to  do  that? 
And  in  doing  it,  was  he  actuated  by  malice  ?  Or  was  he  simply 
defending  himself?  Trying  to  save  his  own  life?  These  are 
the  questions  for  your  determination  under  this  head. 

3.  You  must  be  satisfied  that  the  prisoner,  in  good  faith, 
believed,  and  had  reasonable  grounds  for  believing  that  he  was 
in  danger  of  losing  life,  or  sustaining  great  bodily  harm  from 
the  violence  of  0.  That  belief  must  have  been  honest  and 
sincere.  The  bare  belief,  however,  was  not  sufficient;  there 
must  have  been  reasonable  grounds  for  believing  that  there 
was  such  danger,  and  they  must  have  acted  under  the  influ- 
ence of  such  belief  alone.  In  determining  whether  there  were 
such  reasonable  grounds  for  the  belief  you  are  not  to  conceive 
of  some  ideal  reasonable  person,  but  you  should,  as  nearly  as 
possible  put  yourselves  in  their  position,  with  their  physical 
and  mental  equipment,  surrounded  with  the  circumstances  with 
which  they  were  surrounded,  and  exposed  to  the  influences  to 
which  they  were  exposed.  Does  the  evidence  show  that  they 
had  such  reasonable  grounds  for  believing  that  0.  was  about  to 
take  their  lives,  or  the  life  of  one  of  them,  or  to  do  great  bodily 
harm  to  them  or  one  of  them,  just  before  and  at  the  time  he 
was  killed? 


HOMICIDE — MURDER.  AND   MANSLAUGHTER.  1647 

4.  You  must  be  satisfied  that  the  danger  of  losing  their  lives, 
or  the  life  of  one  of  them,  or  of  both  or  one  of  them  sustaining 
great  bodily  harm  at  the  hands  of  0.  was,  at  that  time,  actually 
or  apparently  imminent'  and  irremediable.  The  law  regards 
human  life  as  the  most  sacred  of  human  interests  committed  to 
its  protection,  and  there  can  be  no  successful  interposition  of 
self-defense  unless  the  necessity  for  taking  O.'s  life  was,  at  least, 
apparently  pressing  and  urgent  at  that  time — unless,  in  a  word, 
the  taking  of  his  life  was  the  reasonable  resort  of  the  prisoner, 
or  one  of  them  to  save  their  own  lives,  or  the  life  of  one  of  them, 
or  to  avert  great  bodily  harm  to  both,  or  one  of  them.  It  is  true 
they  had  a  right  to  act  upon  appearances — upon  such  appear- 
ances as  would  induce  a  reasonable  person  in  their  position  to 
believe  that  there  was  such  immediate  danger,  and  that  if  the 
appearance  turned  out  to  be  fallacious  they  were  not  to  be 
blamed. 

5.  You  must  be  satisfied  that  the  killing  of  0.  was  the  only 
means  of  escape  from  the  danger  mentioned.  Jf  O.'s  life  was 
taken  after  the  appearance  of  danger  disappeared,  the  claim  of 
self-defense  must  not  be  allowed.  Although  0.  may  have  been 
the  aggressor,  although  he  may  have  begun  the  shooting,  yet, 
if  you  find  that  the  danger  of  death,  or  of  great  bodily  harm 
from  0.  could  have  been  escaped  from-,  could  have  been  avoided, 
without  taking  his  life,  the  prisoner  can  not  shelter  himself 
behind  the  law  of  self-defense ;   it  is  no  defense  in  such  case. 

6.  You  must  be  satisfied  that  they  were  without  blame,  with- 
out fault.  The  law  of  self-defense  does  not  imply  the  right  of 
attack,  nor  does  it  permit  a  man  to  kill  another  for  revenge. 3 

lErwin  v.  State.  20  O.  S.  187. 

2  Marts  v.  State,  2fi  O.  S.   Ifi2:   Darling  v.  Williams.  35  0.   S.  59. 

"D.  F.   Pugh,  J..  State  I?.  Elliott.     Approved  by  Sup.   Court. 

Sec.  1875.  When  a  person  may  take  the  life  of  an  assailant 
in  self-defense — A  different  form — Giddings 
case. 

It  is  a  part  of  the  law  of  this  state,  ;is  well  as  of  other  states 
and  countries,  that,  under  certain  defined  circumstances,  a  per- 


1648  INSTRUCTIONS  TO  JURY. 

son  may,  in  self-defense  of  his  own  life,  or  to  avoid  great  bodily 
harm,  take  the  life  of  an  assailant.  And  when  this  right  is 
legitimately  exercised,  the  homicide  so  committed,  whether  justi- 
fiable or  excusable,  according  to  the  distinction  at  common  law, 
it  not  an  unlawful  taking  of  life;  and  is,  therefore,  neither 
murder  nor  manslaughter.  This  right  constitutes  the  boundary 
line  between  manslaughter  and  a  lawful  homicide. 

It  is  generally  agreed  that  the  right  of  self-defense  is  founded 
in  nature  and  is  one  of  the  rights  not  surrendered  to  society 
according  to  the  theory  of  the  social  compact.  But  in  a  state 
of  society  it  is  necessarily  so  far  modified  by  the  laws  as  to  be 
limited  to  the  cases  where  it  would  result  in  imminent  danger 
to  life,  or  of  great  bodily  harm,  if  the  only  remedy  of  the  peace- 
able and  well-disposed  citizen  lay  in  an  appeal  to  the  laws,  or 
the  strong  arm  of  the  state.  If  the  exercise  of  the  right  were 
not  thus  restricted,  violence  would  beget  violence,  and  there 
would  be  an  end  of  civil  government.  There  must,  however, 
be  imminent  danger  to  life  or  of  great  bodily  harm,  before  the 
taking  of  life  in  self-defense  can  be  resorted  to  by  anyone  in 
any  case. 

But  reason  suggests  and  the  law  makes  a  distinction  between 
the  case  of  a  person  driven  to  the  necessity  of  taking  life  in 
self-defense  in  a  conflict  provoked  and  incited  by  his  own  wrong, 
and  that  of  one  reduced  to  such  necessity  in  a  conflict  that  was 
neither  sought  nor  provoked  by  him.  In  the  case  when  a  party 
assaulted  is  in  the  wrong,  he  must,  before  taking  the  life  of  his 
assailant  to  save  his  own  life  or  to  avoid  great  bodily  injury, 
flee  as  far  as  he  conveniently  can,  either  by  reason  of  some  wall, 
ditch,  or  other  impediment,  or  as  far  as  the  fierceness  of  the 
assault  will  permit,  for  it  may  be  so  fierce  as  not  to  allow  him 
to  yield  a  step  without  manifest  danger  to  his  life  or  great 
bodily  harm,  and  then,  in  his  defense,  he  may  kill  his  assailant 
instantly.1 

But  in  a  case  where  the  assailed  party  is  not  in  the  wrong, 
neither  provoked  nor  incited  the  conflict,  and  was  assailed  while 
in  the  pursuit  of  his  lawful  business,  he  may,  without  retreating 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1649 

a  step,  kill  his  assailant  if  necessary  to  protect  his  own  life,  or 
to  avoid  grievous  bodily  harm. 

The  danger  must  in  either  case  be  actual  or  apparent,  and  the 
party  killing  must  have  honestly  believed  that  he  was  in  danger 
of  losing  his  own  life,  or  of  suffering  some  great  bodily  harm, 
before  killing  his  assailant.  And  it  is  not  enough  that  the  party 
killing  honestly  believed  that  there  was  imminent  danger  to 
himself,  the  circumstances  must  have  been  such  as  would  have 
afforded  a  reasonable  ground  for  such  belief.  Of  this  the  jury 
must  judge  from  the  circumstances  as  developed  by  the  testi- 
mony. If  the  appearances  were  such  as  would  have  alarmed  a 
man  of  ordinary  firmness,  and  have  impressed  him  that  such 
danger  was  imminent ;  and  if  the  assailed  party  honestly  believed 
such  to  be  the  case,  it  is  not  material  whether  the  danger  was 
real  or  not.  Thus,  to  make  the  application  to  this  case,  if  you 
should  find  that  the  deceased  threatened  to  kill  the  defendant, 
and,  suiting  his  act  to  his  word,  hastily  reached  with  his  right 
hand  to  his  hip-pocket,  as  if  to  draw  and  use  a  deadly  weapon, 
and  that  the  defendant,  as  would  any  man  of  ordinary  firmness, 
then  honestly  believed  that  the  deceased  intended  to  instantly 
kill  or  seriously  wound  him,  in  such  case  it  is  not  material  to 
the  defendant's  right  of  self-defense  whether,  as  a  matter  of 
fact,  the  deceased  had  or  had  not  a  weapon. 

If,  when  violently  assaulted,  a  party  were  required  to  act  at 
his  peril  in  judging  whether  there  was  real  ground  for  appre- 
hending imminent  danger,  before  resorting  to  such  measures  as 
the  circumstance  seemed  to  require  for  his  safety  and  protection, 
it  might  be  as  hazardous  to  defend  himself  in  the  first  instance 
as  to  risk  the  ultimate  result  of  what  appeared  to  be  a  violent 
and  malicious  assault  upon  his  person  and  life;  and  he  might 
escape  from  what  appeared  to  be  the  imminent  danger  to  be 
tried  and  condemned  as  a  man-slayer,  where,  had  the  facts  been 
what  the  circumstances  indicated,  he  would  be  excused.2 

iStoffer  v.  State,  15  0.  S.  47. 

sThad.   A.   Mmsliall.  J.,  in  the  Giddingfl  trial,  29  O.  S.  187,  2G  0.  S.  162, 
35  O.  S.  59. 


1650  INSTRUCTIONS  TO  JURY. 

Sec.  1876.    Right  to  repel  assault. 

"If  the  defendant  and  his  co-defendants  were  in  the  exercise 
of  their  lawful  rights  in  passing  along  the  streets  at  the  time  of 
the  conflict  wherein  one  was  killed,  and  neither  of  the  accused 
parties  began  the  affray  or  attack,  then  the  defendant  and  those 
accused  with  him  had  the  right  to  repel  the  assault  with  such 
force  as  was  necessary  to  do  so,  and  had  a  right  to  defend  them- 
selves from  danger  to  life  or  great  bodily  harm;  and  if  they 
were  suddenly  assailed  or  surrounded  by  superior  numbers 
armed  with  weapons  dangerous  to  life,  or  calculated  to  do  great 
bodily  harm,  the  defendants  had  a  right  to  stand  on  their  de- 
fense, to  repel  force  by  force,  even  to  the  taking  of  life,  if 
they  believed  and  had  reasonable  grounds  to  believe  that  it  was 
necessary  to  do  so  to  prevent  either  death  or  great  bodily  harm 
to  themselves,  and  if  necessary  they  may  use  such  weapons  as 
will  accomplish  the  purpose."1 
i  From  Goins  v.  State,  46  0.  S.  457. 

Sec.  1877.     Son  may  defend  parent. 

A  son  has  the  right  to  commit  an  assault  in  the  defense  of  his 
mother,  if  the  mother  be  not  in  the  wrong.  If  at  the  time  a 
son  does  commit  an  assault  in  the  defense  of  his  mother  while 
she  is  using  such  means  as  are  necesary  to  repel  an  assailant 
from  entering  her  home,  or  to  prevent  such  person  from  forcibly 
entering  her  home,  such  assault,  if  so  made  by  the  son,  where 
he,  in  the  careful  and  proper  use  of  his  faculties,  in  good  faith 
believes  and  has  reasonable  ground  to  believe  that  his  mother 
is  in  imminent  danger  of  great  bodily  harm,  and  that  her  only 
means  of  escape  from  such  danger  will  be  by  the  son  taking  the 
life  of  such  person,  the  son  does  not  thereby  commit  an  unlawful 
act,  even  though  in  fact  the  son  be  mistaken  as  to  the  existence 
or  imminence  of  the  danger.  So,  in  this  case,  if  you  are  satis- 
fied from  the  evidence  that  the  defendant,  M.  M.,  was  assaulting 
the  deceased  to  prevent  him  from  entering  her  home  forcibly 
and  against  her  will,  and  that  during  the  time  of  such  conflict 


HOMICIDE MURDER  AND   MANSLAUGHTER.  1651 

the  defendant,  S.  M.,  in  the  careful  and  proper  use  of  his  facul- 
ties, in  good  faith  believed  and  had  reasonable  ground  to  believe 
that  M.  M.  was  in  imminent  danger  of  great  bodily  harm,  and 
that  her  only  means  of  escape  from  such  danger  was  by  com- 
mitting the  assault  that  he  did  commit,  then  S.  M.  is  guilty  of 
neither  murder  nor  manslaughter,  and  as  to  him,  your  verdict 
must  be  accordingly,  even  though  S.  M.  was  in  fact  mistaken 
as  to  the  existence  or  imminence  of  such  danger  to  his  mother. 
But  you  must  be  satisfied  that  S.  M.  believed  in  good  faith  that 
M.  M.  was  in  danger  of  great  bodily  harm  from  the  decedent, 
there  must  have  been  reasonable  grounds  for  believing  that 
there  was  such  danger,  and  that  belief  must  have  been  honest 
and  sincere ;  the  bare  belief  is  not  sufficient ;  and  he  must  have 
acted  under  the  influence  of  such  belief  alone.  And  in  deter- 
mining whether  there  were  such  reasonable  grounds  for  the 
belief,  you  should,  as  nearly  as  possible,  according  as  disclosed 
by  the  evidence,  put  yourself  in  their  position,  with  their 
physical  and  mental  equipments,  surrounded  with  the  circum- 
stances with  which  they  were  surrounded.  Does  the  evidence 
show  that  he  had  such  reasonable  grounds  for  believing  that  the 
deceased  was  about  to  do  her  great  bodily  harm?  Consider 
the  evidence  as  to  the  conduct  of  the  parties  at  the  time  and 
immediately  previous  to  the  acts  which  resulted  in  the  death 
of  the  decedent.1 

i  Melhorn,  J.,  in  State  v.  Miner.  The  killing  of  a  person  in  defense  of 
those  standing  in  the  relation  of  husband  and  wife,  parent  and 
child,  etc.,  is  regarded  in  law  as  the  act  of  tlie  person  defended, 
and  is  excused  to  the  same  extent  as  if  in  fact  committed  by  him. 
Clark's  Cr.  L.,  ir>7,  and  cases  cited;   1  Bishop's  Crim.  Law,  sec.  877. 

Sec.  1878.     Justifiable  homicide. 

Homicide  is  justifiable  on  the  grounds  of  self-defense  when 
the  slayer,  in  the  careful  and  proper  use  of  his  faculties  bona 
fide,  believes  and  has  reasonable  ground  to  believe  that  he  or 
his  family  is  in  imminent  danger  of  death  or  groat  bodily  harm, 
and  that  his  only  means  of  escape  from  sueh  danger  will  be  by 
taking  the  life  of  the  assailant,  although  in  fact  he  is  mistaken 


1652  INSTRUCTIONS  TO  JURY. 

as  to  the  extent  or  imminence  of  the  danger ;  and  where  one  is 
assaulted  in  his  own  home,  or  the  house  itself  attacked,  he  may 
use  such  means  as  are  necessary  to  repel  the  assailant,  or  to 
prevent  his  forcible  entry  or  material  injury  to  his  home,  even 
to  the  taking  of  life.  But  a  homicide  iu  such  a  case  would 
not  be  justified  unless  the  slayer,  in  the  careful  and  proper 
use  of  his  faculties,  in  good  faith  believes  and  has  reasonable 
ground  to  believe  that"  the  killing  is  necessary  to  repel  the 
assault  or  prevent  his  forcible  entry.1 

i  Melhorn,  J.,   in   State  v.  Mary   Miner,   et  al.     Defense  of   self  or   home. 
State  v.  Peacock,  40  O.  S.  333. 

Sec.  1879.     Common  defense  from  attack. 

"If  the  only  purpose  made  known  to  the  defendant  prior  to 
the  killing  of  the  deceased,  and  the  only  one  contemplated  or 
entered  upon  by  him,  was  a  defense  of  himself  and  companions 
from  an  attack  by  a  party  of  men  superior  in  numbers  and 
strength  which  had  been  threatened,  and  neither  the  defendant 
nor  his  comrades  were  to  be  aggressors  or  attack  the  opposing 
party,  then  such  common  purpose  of  defense  merely  was  not 
unlawful  and  criminal."1 
i  From  Goins  v.  State,  46  0.  S.  4.57. 

Sec.  1880.     Evidence  of  previous  character  and  reputation  in 
homicide. 

The  defendant  has  placed  his  previous  character  and  repu- 
tation as  to  being  a  man  of  peace  and  quiet  in  evidence.  If 
you  find  that  previous  to  this  difficulty  he  sustained  a  good 
reputation  for  peace  and  quiet,  you  will  weigh  it  in  his  favor 
for  what  you,  in  your  honest  judgments,  may  think  it  is  worth. 
Where  the  question  to  be  determined  by  you  may  be  close,  it 
should  be  sufficient  to  turn  the  scale  in  his  favor. 

It  not  only  sheds  light  upon  the  subject  of  inquiry,  but  it  is 
also  admitted  as  a  rule  of  public  policy,  as  a  reward  held  forth 
by  the  law  to  those  who,  by  conformity  to  its  commands,  estab- 
lish characters  for  peace  and  quiet.     Where  one  who  has  estab- 


HOMICIDE MURDER  AND    MANSLAUGHTER.  1G53 

lished  such  a  character  by  hLs  conduct  as  a  good  citizen  may 
use  it  in  repelling  the  charge  of  crime,  he  will  also  be  the  more 
careful  not  only  to  form  it,  but  also  to  retain  it.  It  is,  however, 
only  a  circumstance  favorable  to  his  innocence.  As  a  general 
rule,  a  man's  character  for  anything  is  the  outgrowth  of  what 
he  is,  and  if  by  his  conduct  and  deportment  among  his  fellows 
he  has  earned  the  reputation  of  being  a  man  of  peace  and  quiet, 
it  affords  grounds  for  believing  that  he  is  what,  by  his  conduct, 
he  seems  to  be;  and  the  impartial  mind  is  the  less  ready  to  con- 
clude that  such  a  one  has  acted  contrary  to  what  may  seem  to 
be  a  law  of  his  life. 

The  weight  to  be  given  to  the  hitherto  good  character  of  the 
defendant  for  peace  and  quiet  must  be  such  as  the  jury,  under 
all  the  circumstances,  think  it  should  receive.  It  is  very  rele- 
vant to,  and  of  much  weight  upon  the  question  of  malice ;  for 
the  existence  of  such  a  character  can  not  consist  with  the  ele- 
ment of  malice  until  it  has  been  uprooted  and  destroyed.  It 
is  also  quite  relevant  to  the  question  whether  the  defendant, 
in  committing  the  homicide,  acted  in  self-defense ;  for  here, 
again,  he  could  not,  without  honestly  believing  that  he  was 
in  imminent  danger  of  great  bodily  harm  or  loss  of  life,  have 
taken  the  life  of  his  fellow  if  he  was  by  habit  a  peaceful  and 
quiet  man.1 
i  Thad.  A.  Minshall,  J.,  in  the  Giddings  case. 


CHAPTER   CVIII. 
INSANITY. 

SEC.  SEC. 

1881.  Insanity  —  A      comprehensive       18S3.  Insanity  as  a  defense. 

presentation.  1S84.  Burden  of  proving  insanity. 

1882.  Insanity  defined. 

Sec.  1881.     Insanity — A  comprehensive  presentation. 

1.  Medical  insanity. 

2.  Legal  tests. 

The  state  has  no  interest  in  the  conviction  and  punishment 
of  an  irresponsible  person,  and  those  taking  part  in  the  admin- 
istration of  justice  have  no  desire  to  visit  the  penalty  of  the 
law  upon  such  a  person ;  it  would  afford  no  example  to  others, 
nor  would  it  deter  others  from  the  commission  of  a  crime.  On 
the  other  hand,  the  state  is  zealous  that  no  mistakes  shall  be 
made  on  the  side  of  mercy  which  will  defeat  justice  and  detract 
from  the  majesty  of  the  law. 

In  the  administration  of  the  law  difficulty  is  encountered  in 
dealing  with  the  subject  of  insanity,  which  is  due  to  the  imper- 
fect knowledge  upon  the  subject  among  medical  men,  lawyers, 
courts,  jurors  and  men  in  general.  In  medical  science  different 
shades  and  degrees  or  kinds  of  insanity  are  recognized,  such 
as  temporary  or  emotional  insanity,  impulsive  insanity,  homi- 
cidal insanity,  irresistible  impulse,  and  others.  Medical  men 
sometimes  express  regret  that  courts  do  not  recognize  the  degrees 
of  irresponsibility  adopted  in  medical  science.  The  law  does 
not  so  recognize  them.  Medical  insanity,  so  called,  can  not  be 
said  to  be  legal  insanity.1  The  law  has  adopted  what  seems  to 
be  the  true  tests  for  determining  the  legal  responsibility  of  one 
charged  with  crime,  and  it  is  a  matter  for  the  sole  determina- 
tion by  the  jury.  The  law  proceeds  upon  the  theory  that  a 
i  7  N.  P.  547,  5  C.  C.  74,  22  O.  S.  90. 
1654 


INSANITY.  1655 

man  having  intellect  and  reason  may  control  and  keep  within 
prescribed  bounds  any  natural  instinct,  or  propensity  of  which 
they  may  be  possessed;  and  when  they  do  not  do  so,  and  by 
their  conduct  and  acts  infringe  upon  some  law,  the  inquiry  by 
the  jury,  whose  sole  province  it  is  to  determine  the  mental  re- 
sponsibility Avhen  it  is  brought  in  question,  may  be  along  two 
lines.  The  jury  will  endeavor  to  discover  from  the  proof  which 
is  laid  before  it,  whether  the  brain  of  the  accused  was,  at  the 
time  of  the  commission  of  the  act  charged  as  criminal,  so  dis- 
ordered in  its  functions  as  to  destroy  the  power  to  control  the 
mind  or  will  and  his  acts.  The  jury  will  determine  whether 
the  accused,  instead  of  having  a  diseased  brain,  was  actuated 
by  excitement,  or  highly  nervous  conditions  from  worry,  or  by 
passions  and  angered  feelings,  or  revenge,  produced  by  motives 
of  anger,  hatred  or  revenge.  If  the  alleged  insanity  docs  not, 
appear  by  the  evidence  to  be  of  a  marked  character,  and  is  set 
up  as  a  defense  to  a  charge  of  murder,  it  is  incumbent  upon 
the  jury  to  move  with  caution,  and  carefully  weigh  every  cir- 
cumstance that  may  shed  any  light  upon  the  question.  In  de- 
termining whether  the  defendant  was  insane  at  the  time  of  the 
alleged  killing  of  A.,  the  jury  may  consider  all  his  acts  at'  the 
time  of,  before,  and  since  the  alleged  commission  of  the  act, 
as  such  acts  and  conduct  have  been  shown  by  the  evidence,  and 
the  jury  have  the  right  to  consider  the  defendant's  appearance 
and  actions  durins:  the  trial  as  a  circumstance  in  determining 
the  insanity  at  the  time  of  the  alleged  homicide.1 

The  law  permits  men  and  women  who  have  known  the  accused 
and  who  have  had  opportunity  to  learn  of  aiid  observe  the  acts, 
conduct,  and  appearance  of  the  accused,  upon  first  giving  their 
testimony  as  to  these  matters,  to  then  give  you  the  benefit  of 
their  opinion  as  to  the  mental  condition  of  the  accused,  based 
uj)on  such  facts. 

Testimony  of  physicians,  men  specially  learned  in  the  dis- 
eases of  the  mind,  have  been  called  to  give  their  opinions  based 
upon  their  observation  of  and  knowledge  of  acts,  appearance 
and  conduct  of  the  defendant.  This  you  are  to  consider  with 
all  the  other  evidence  offered  on  the  subject. 


1656  INSTRUCTIONS  TO  JURY. 

The  jury  may  also  consider  the  testimony  as  to  the  mental 
condition  of  the  ancestry  of  the  defendant.  In  a  word,  all  the 
testimony  which  the  court  admitted  to  be  carefully  considered 
and  weighed  by  you,  and  the  mental  condition  of  the  defendant 
at  the  time  of  the  commission  of  the  act  charged  in  the  indict- 
ment determined  therefrom. 

A  sane  man  is  one  whose  senses  bear  truthful  evidence ;  whose 
understanding  is  capable  of  receiving  that  evidence ;  whose 
reason  can  draw  proper  conclusions  from  the  truthful  evidence 
thus  received;  whose  will  can  guide  the  right  and  wrong  grow- 
ing out  of  that  thought ;  whose  mental  sense  can  determine  the 
right  and  wrong  growing  out  of  that  thought ;  and  whose  act, 
at  his  own  pleasure,  be  in  conformity  to  all  these. 

A  person  who  is  possessed  with  the  power  to  determine  the 
right  and  wrong  so  far  as  it  relates  to  his  duty,  under  the  con- 
ditions and  circumstances  of  the  transaction  giving  rise  to  the 
question  of  his  duty  from  which  his  sanity  arises  as  a  question 
for  determination,  and  who  has  the  power  of  will  to  enable  him 
to  pursue  right  and  to  reject  the  wrong,  is  to  be  regarded  as  a 
rational  being.  One  who  is  without  these  faculties  of  the  mind 
and  power  of  the  will,  is  not  to  be  regarded  as  a  rational  being, 
and  may  not  in  law  be  held  responsible  for  what  he  does. 

Insanity  means  such  a  perverted  and  deranged  condition  of 
the  mental  and  moral  faculties  as  to  render  a  person  incapable 
of  distinguishing  between  right  and  wrong,  or  not  conscious 
at  the  time  of  the  nature  of  the  act  which  he  is  committing; 
and  where,  though  conscious  of  it,  and  able  to  distinguish  be- 
tween right  and  wrong,  and  knowing  that  the  act  is  wrong,  yet 
his  will — by  which  is  meant  the  governing  power  of  his  mind — 
has  been  otherwise  than  voluntarily  so  completely  destroyed 
that  his  actions  are  not  subject  to  it,  but  are  beyond  his  control.2 

The  jury  will  bear  in  mind  in  the  consideration  of  this  ques- 
tion the  statement  heretofore  made  to  the  effect  that  medical 
insanity  is  not  legal  insanity.  The  court  makes  the  further 
suggestion  in  this  connection  that  the  law  permits  and  requires 
that  you  apply  all  tests  whether  coming  from  medical  science 


INSANITY.  1657 

or  medical  aid,  or  from  the  testimony  of  those  who  have  testified 
in  this  case,  in  determining  upon  the  sanity  of  the  defendant. 
The  lack  of  certainty  and  of  definite  knowledge  of  the  sub- 
ject of  insanity  has  prompted  the  law  to  adopt  the  rule  of  evi- 
dence that  the  insanity  must  be  shown  by  a  preponderance  of 
the  evidence. 

The  real  test  of  legal  responsibility,  sanctioned  by  the  high 
judicial  authority,  is  whether  at  the  time  of  the  homicide  tin* 
brain  of  the  defendant  was  partially  deranged  or  diseased  from 
some  cause,  whether  such  disease  or  derangement  had  taken 
charge  of  his  brain,  and  had  so  impelled  it  that  for  the  time 
being  his  will  power,  judgment,  reflection  and  control  of  his 
mental  faculties  were  so  impaired  that  the  act  done  was  the 
result  of  an  impulse  which  a  diseased  or  deranged  mind  was 
unable  for  the  time  to  control.  If  the  jury  believe  from  the 
evidence  that  there  was  at  the  time  of  the  commission  of  the 
act  charged,  that  there  was  at  the  time  some  excitement  of  the 
mind  of  the  defendant  which  prompted  some  unpremeditated 
action  or  some  spontaneous  inclination  to  do  the  act,  which  you 
believe  from  the  evidence  to  have  arisen  from  some  outer  influ- 
ence of  mental  derangement,  and  not  directly  from  feelings  of 
passion,  anger  and  revenge  of  a  sane  mind,  and  which  the  mind 
of  the  defendant  could  not  and  did  not  successfully  resist  and 
control,  then  the  jury  may  find  the  defendant  not  guilty  of  the 
crime  and  may  render  a  verdict  of  not  guilty. 

If  you  find,  according  to  the  requisite  degree  of  evidence,  that 
at  the  time  of  the  act,  the  mind  of  the  defendant  was  not  acting 
under  the  influence  of  some  outer  influence  of  mental  derange- 
ment, but,  on  the  other  hand,  that  his  mind  was  operating  under 
the  influence  of  feelings  of  passion,  anger  and  revenge,  and  not 
mental  derangement,  you  may  in  such  event  arrive  at  the  con- 
clusion that  he  was  sane,  and  proceed  with  the  further  investi- 
gation of  the  questions  involved. 

You  are  not  required  to  decide  whether  or  not  the  defendant 
is  insane  at  the  present  time.3 

Finally,  gentlemen,  on  this  subjeei,  the  question  of  the  insanity 
of  the  defendant  has  exclusive  reference  to  the  act  with  which 


1658  INSTRUCTIONS  TO  JURY. 

he  is  charged  and  the  time  of  the  commission  of  the  same.  If 
he  was  sane  at  the  time  of  the  commission  of  the  act,  he  is 
punishable  by  law.  If  he  was  insane  at  the  time  of  the  com- 
mission of  the  act,  he  is  entitled  to  be  acquitted.  A  safe  and 
reasonable  test  is  that  whenever  it  shall  appear  from  all  the 
evidence  that  at  the  time  of  committing  the  act  the  defendant 
was  sane,  he  will  be  amenable  to  the  law.  Whether  the  insanity 
be  general  or  partial,  whether  continuous  or  periodical,  accord- 
ing to  terms  in  medical  science,  the  law  recognizing  only  mental 
irresponsibility  at  the  time  of  the  act,  it  must  be  made  to  appear 
to  the  jury  that  the  mental  unsoundness  controlled  the  will  of 
the  accused  at  the  time  of  the  commission  of  the  act.4 

If  upon  due  consideration  of  the  evidence  on  the  question  of 
insanity  you  are  of  the  opinion  that  the  defendant  was  sane 
at  the  time  of  the  commission  of  the  act  charged  against  him 
in  the  indictment,  you  will  then  proceed  to  the  further  con- 
sideration of  the  issues  presented  by  the  pleading  of  not  guilty.5 
iSackett  Instrs.,  sec.  2572,   125  Cal.  489. 

2  Lowe  v.  State,   118   Wis.   641;    Dans  v.  United   States,   165  U.  S.  373. 

3  135  Cal.  489. 

iHotema  v.  United  States,  186  U.  S.  413;  Sackett  Inst.,  sec.  2570. 
5  State  v.  Cly,  Franklin  Co.  Com  .Pleas,  Kinkead,  J. 

Sec.  1882.     Insanity  defined. 

Insanity  has  been  denned  to  be  a  disease  of  the  mind;  a  dis- 
ease of  the  organ  that  thinks,  but  what  is  mind?  What  is  the 
organ  that  thinks?  It  is  the  subtle  essence  which  is  not  cog- 
nizant to  the  senses  of  the  outsider  or  the  observer.  It  can  not 
be  subjected  to  analysis  as  long  as  it  is  living.  It  can  not  be 
inspected  by  either  lens  or  microscope,  or  measured  by  any 
instruments.  ' '  The  molecular  changes  which  accompany  thought 
cease  at  death,"  and  while  living,  the  physical  functions  of  the 
brain  can  only  be  guessed  at.  It  has  been  claimed  that  insanity 
is  such  a  derangemsnt  of  the  mental  faculties  of  the  person 
whose  sanity  is  in  question  that  he  is  unable  to  reason  cor- 
rectly. But  it  differs  so  much  in  kind  and  degree  that  medical 
science  has  never  been  able  to  formulate  a  definition  precise 


INSANITY.  1659 

enough  to  be  useful  in  the  varying  circumstances  of  each  indi- 
vidual case.  Medical  men  whose  labors  and  studies  are  in 
the  line  of  mental  disorders  do  not  agree  upon  a  definition  of 
insanity,  or  as  to  the  existence  of  it  in  any  particular  case. 
Dr.  Hammond,  in  his  work  of  Diseases  of  the  Nervous  System, 
defines  insanity  to  be:  "A  manifestation  of  disease  of  the  mind 
characterized  by  a  general  or  partial  derangement  of  one  or 
more  of  the  faculties  of  the  mind,  and  in  which,  while  conscious- 
ness is  not  abolished,  mental  freedom  is  perverted,  weakened, 
or  destroyed."  This  is  too  abstract  and  general  for  practical 
purposes.  What  we  want  is  a  working  definition,  a  legal  defini- 
tion, a  definition  that  will  aid  us  in  forming  a  careful  judgment 
in  this  case.  The  law  supplies  that  want.  The  law's  definition 
of  insanity,  however,  does  not  harmonize  with  the  conclusions 
of  medical  science.  The  observations  and  language  of  another 
judge  which  are  apropos  in  this  proceeding:  "On  both  sides 
of  an  invisible  line  are  multitudes  of  cases'  where  it  is  impos- 
sible to  say  with  confidence  whether  the  mind  is  sane  or  insane. 
But  when  the  question  of  responsibility  is  presented  to  a  court 
there  is  an  imperative  necessity  for  deciding,  and  the  further 
necessity  of  deciding  it  by  rule.  An  arbitrary  line,  if  none  can 
be  discovered,  must  be  drawn.  It  must  be  drawn  so  as  to  be 
certain,  comprehensible,  and  broad ;  certain  enough  for  the  con- 
duct of  life;  comprehensive  enough  to  be  clearly  explained  to 
a  jury  of  twelve  plain  men;  and  broad  enough  to  cover  many 
cases  without  confusing  unskilled  minds  with  minute  distinc- 
tions. The  refinements  of  med;cal  science  must  he  pretermitted. 
The  first  necessity  in  the  administration  of  justice  must  be  con- 
sidered, and  that  is  the  safety  of  the  community,  the  protection 
of  the  greater  and  more  valuable  portion  of  the  community  who 
are  not  insane.  A  rule  must  be  laid  down  which  will  not  have 
the  effect  of  letting  criminals  escape  punishment  through  the 
bewilderment  of  juries.  Tenderness  to  the  weak,  however  com- 
mendable  in  itself,  is  not  to  be  so  stretched  as  to  endanger  the 
lives  or  even  the  property  of  the  public."     These  are  some  of 


1660  INSTRUCTIONS  TO  JURY. 

the  reasons  which  inspired  and  made  a  legal  definition  of  insanity 
a  virtue  of  necessity  and  a  dictate  of  wisdom.1 

i  Pugb,  J.,   in   State   v.   Kalb,   Franklin   Co.   Com.   Pleas.     For   interesting 

cases  denning  insanity,  see  Cora   v.  Rogers,  7  Mete.   500;   McNagh- 

ten's  case,   10  C.  &  F.  200;    State  v.  Felter,  25  la.   68;   Parsons  v. 

State,   81   Ala.   577    (good   case  collecting  cases)  ;    Dunn   v.   People, 

109  111.  635;   Guiteau's  case,  10  Fed.   161. 
Must  be  proved  by  a  preponderance  of  the  evidence  and  not  merely  creating 

a  doubt,  12  0.  483,  2  O.  S.  54,  10  O.  S.  598,  23  O.  S.  349,  31  O.  S. 

Ill,  4  C.   C.   101. 
A  very   instructive  opinion  on   insanity    is  Clark   v.   State,   12   Ohio,   483, 

and   Judge  Bircbard's    instruction    on   page   495   of  the   report    is   a 

very  good  one  to   follow. 

Sec.  1883.     Insanity  as  a  defense. 

It  is  a  well-understood  rule  of  law  that  an  insane  person  can 
not  be  convicted  of  a  crime.  The  state  has  no  interest  in  the 
conviction  of  an  unresponsible  person;  it  would  offer  no  ex- 
ample to  others,  nor  would  it  deter  others  from  committing  a 
crime  any  more  than  it  would  the  punishment  of  a  dumb  brute. 
By  reason  of  a  lack  of  knowledge  by  men  of  science,  as  well  as 
the  legal  fraternity,  there  is  great  difficulty  in  defining  insanity 
in  language  which  wall  include  any  and  all  cases.  When  insanity 
of  a  person  is  not  of  a  marked  character,  and  is  set  up  as  a 
defense  to  a  charge  of  murder,  courts  and  jury  must  move  with 
caution,  and  carefully  weigh  every  circumstance  that  may  shed 
any  light  upon  the  question.  It  is  conceded  by  the  physicians 
that  there  is  a  form  of  mental  disease  called  transitory  insanity. 
It  is  said  that  it  may  be  superinduced  in  various  ways,  and  is 
more  likely  to  occur  in  persons  of  a  highly  nervous  tempera- 
ment. 

The  perplexing  question  in  regard  to  what  may  be  termed 
transitory  insanity  is,  that  the  subject  may,  as  is  said,  be  sane 
up  to  the  moment  of  committing,  and  immediately  after  com- 
mitting a  crime.  Whether  such  a  form  of  insanity  exists  is  a 
question  of  fact  and  not  of  law.  It  is  a  question  which  the  jury 
must  determine  from  the  evidence,  by  the  testimony  of  physicians 
of  great  experience  in  medical  science,  and  those  in  particular 
who  have  devoted  themselves  to  mental  pathology,  or  diseases  of 


INSANITY.  1661 

the  mind.  For  it  is  an  old  maxim  that  credit  is  to  be  given  to 
everyone  for  the  knowledge  he  possesses  in  the  practice  of  his 
own  art. 

A  sane  man  is  one  whose  senses  bear  truthful  evidence ;  whose 
understanding  is  capable  of  receiving  that  evidence ;  whose  rea- 
son can  draw  proper  conclusions  from  the  truthful  evidence 
thus  received ;  whose  will  can  guide  the  thought  thus  obtained ; 
whose  moral  sense  can  determine  the  right  from  the  wrong  grow- 
ing out  of  that  thought,  and  whose  act  can,  at  his  own  pleasure, 
be  in  conformity  to  all  these.  One  not  possessed  of  these  facul- 
ties is  not  a  sane  man. 

Hence  the  power  to  determine  the  right  from  the  wrong  in  a 
given  case,  not  in  the  abstract,  but  as  applied  to  the  particular 
parts  and  circumstances  of  that  case,  the  case  in  which  his  sanity 
arises  as  a  question  for  determination,  together  with  the  power 
of  will,  adequate  to  accept  the  right  and  reject  the  wrong,  is  a 
test  of  sanity   or  insanity. 

One  possessed  of  such  faculties  of  the  mind  and  power  to 
determine  and  control  his  acts  is  a  rational  being,  a  free  agent, 
a  responsible  subject  of  the  law.  One  without  these  faculties 
of  mind  and  power  of  Mali  is  not  a  rational  being,  and  is  not 
responsible  for  what  he  does.  Courts  in  the  main,  judge  of  the 
mental  condition  of  a  man  from  the  external  indicia  of  the  mind, 
in  which  they  are  consistent  with  all  the  analogies  of  the  law  of 
evidence. 

Then  if  you  find,  by  a  preponderance  of  proof,  that  at  the  time 
the  defendant  shot  and  killed  the  deceased  he  was  laboring 
under  some  mental  infirmity,  rendering  him  incapable  of  deter- 
mining that  it  would  be  wrong  to  take  the  life  of  the  deceased 
because  he  had  been  the  occasion  of  his  domestic  troubles,  that 
his  duty  to  his  fellowman  required  that  he  should  abstain  from 
so  doing,  that  he  would  be  punished  by  the  laws  if  he  killed  him 
under  sueh  circumstances,  and  slew  the  deceased  from  the  un- 
controllable impulse  of  his  mental  disorder,  without  power  or 
reason  or  will  to  see  that  it  was  wrong  and  abstain  from  doing 
it,  not  from  the  impulse  of  passion  excited  from  his  domestic 


1662  INSTRUCTIONS  TO  JURY. 

troubles,  with  which  the  deceased  had  been  connected,  then  yon 
should  acquit  him. 

On  the  contrary,  if  you  find  that  he  did  not  know  that  it  was 
wrong  and  punishable  by  the  law,  if  he  could  have  restrained 
himself,  if  it  was  not  the  impulse  of  his  mental  disorder,  if  it 
was  the  impulse  of  the  passion  of  anger,  or  a  feeling  of  malice 
excited  by  the  wrongs  he  had  suffered  from  the  conduct  of  the 
deceased,  then  he  was  legally  responsible;  and  if  he  intention- 
ally killed  W.  he  was  guilty  of  manslaughter,  if  not  more,  unless 
he  killed  him  in  the  lawful  exercise  of  the  right  of  self-defense. 

All  persons  arrived  at  the  usual  years  of  discretion  are  pre- 
sumed sane  and  accountable  for  what  they  do. 

And  when  it  is  claimed  that  a  party  charged  with  crime  is 
not  sane  he  is  not  amenable  to  the  law  for  what  he  does,  the 
burden  is  placed  on  the  defense  by  a  preponderance  of  the  evi- 
dence to  establish  this  to  the  jury.  And  if  this  is  not  done  the 
defense  is  to  be  rejected.1 

i  Thad.  A.  Minsliall,  J.,  in  the  Giddings  trial. 

Sec.  1884.     Burden  of  proving  insanity. 

"To  defeat  the  legal  presumption  of  sanity,  which  meets  the 

defense  of  insanity  at  the  threshold,  the  burden  of  establishing 

mental  alienation   of  the   accused   affirmatively  rests  upon   the 

accused."1 

i  From  Bergin  v.  The  State,  31  O.  S.  111.  This  lias  long  been  the  rule  in 
Ohio  as  shown  by  the  following  cases:  Clark  v.  State,  12  O.  483; 
Leoffner  v.  The  State,  10  O.  S.  599;  Silvus  v.  State,  22  O.  S.  90; 
Bond  v.  The  State,  23  0.  S.  349 ;  Weaver  v.  The  State.  24  0.  S.  584. 


CHAPTER   CIX. 
INSURANCE— FIRE,  ACCIDENT,  LIFE. 


SEC.  SEC. 

1885.  Burden  on  plaintiff  to   prove       1892. 

loss — Proof    of    loss — Or 
waiver    of    provision    by       1893. 
defendant. 

1886.  Waiver    of    proofs    of    loss —       1894. 

Burden  of  proving  au- 
authority  of  agent  on 
plaintiff. 

1887.  Conditions     as     to     time     of       1895. 

proof  of   loss,   and  proof       1896. 
— When  right  to  sue  ac- 
crues— What  is  sufficient        1897. 
notice. 

1888.  Waiver  of  proofs  of  loss  may 

be  inferred  from  acts  of 
company — Mere     silence,       1898. 
nor  sending  agents  to  in-       1899. 
vestigate,  nor  attempt  to 
compromise,       will      not       1900. 
amount  to  waiver — What 
otlier   acts   in  connection 
therewith  will.  1901. 

1889.  Proof  of  loss— If  policy  of  in- 

surance   destroyed    it    is 

duty  of  company  to  fur-        1902. 

nish  copy  of  information 

— Failure     on      its    part       190.3. 

may    estop    the   company 

from  claiming  proofs  not        1904. 

in  time.  1905. 

1890.  Burden  of  proof  in  action  for 

loss    by    fire — Proofs    of       1906. 
loss. 

1891.  Insurance        of        partnership 

property — Was     partner- 
ship dissolved  at  time  in-         l!»(l7. 
BUrance       issued — Repre- 
sentation as  to  ownership 
of  property. 


Vacancy  of  property — Breach 
of  condition  as  to. 

When  is  a  building  vacant  or 
unoccupied. 

Vacancy — Waiver  of  forfeit- 
ure by  reason  of  vacancy 
of  premises — Burden  of 
proof. 

Total  or  partial  loss. 

Compromise  of  loss  obtained 
under  duress. 

Evidence  as  to  value  of  prop- 
erty as  reflecting  on 
charge  of  destroying 
property. 

Cancellation   of   policy. 

Rescission — Necessary  party 
to  suit  for. 

Defense  of  false  representa- 
tion as  to  value  of  prop- 
erty— Burden  of  proof. 

Defense  when  fraudulent  con- 
cealments or  representa- 
tions   were    made. 

False  representations  as  to 
other  insurance. 

Same      continued — Return      of 

premium. 

Fraudulent  proofs  of  loss. 

Fire  insurance — Ownership  of 
property. 

Fire  Insurance — Defense  as  to 
provision  requiring  pro- 
duction of  books  for  ex- 
aminat  ion. 

Defense  that  large  quantities 
of    oil     and      petroleum 

were    stored,    and    drawn 
at    night   in   violation   of 

policy. 

166.3 


1664  INSTRUCTIONS  TO  JURY. 


1008.  Defense  that  fire  was  caused  1012.  Consideration — Adequacy      or 

by  willful  act  or  procure-  sufficiency     not    inquired 

nient.  into. 

1000.  Insurance  on  steamboat — Neg-  1913.  Insurance    —    Application  — 

ligence  of  owner's   agent  Statements  how    treated. 

— Seaworthiness  of  boat.  1014.  Insurance  —  Life  —  Misrepre- 

1910.  Accident    insurance — Proof  of  sentation   by   insured. 

claim.                                •  1015.  Same     continued — What    con- 

1911.  Accident       insurance  —  What  stitutes     waiver   of   mis- 

necessary  to  recovery  for  representations. 

death  upon.  1016.  Concealment  of  material  fact 

concerning  insurance,  or 
subject  thereof. 

Sec.  1885.     Burden  en  plaintiff  to  prove  loss — Proofs  of  loss — 
Or  waiver  of  provisions  by  defendant. 

The  burden  is  upon  the  plaintiff,  in  order  to  entitle  her  to 
recover  here,  first,  to  establish  by  a  preponderance  of  the  evi- 
dence that  this  property  destroyed  by  fire  was  not  excepted  by 
any  of  the  provisions  of  this  policy  of  insurance  upon  which 
she  predicates  her  action,  and  to  establish  the  amount  of  her 
loss  by  reason  thereof,  and  that  within  the  time  provided  by  the 
policy  she  furnished  to  the  company  or  its  authorized  agent 
proofs  of  loss,  as  required  by  the  policy,  or  that  that  provision 
of  the  policy  was  waived  by  the  company  or  its  authorized  agent, 
or  by  either ;  or  by  the  act  of  its  authorized  agent  she  was  pre- 
vented from  thus  complying  with  the  conditions  of  the  policy. 
These  are  the  propositions  that  the  plaintiff  must  maintain  to 
entitle  her  to  recover,  and  she  must  maintain  these  propositions 
by  a  preponderance  of  all  the  testimony  in  the  case. 

Look  into  the  testimony  and  conditions  of  this  policy  and 
ascertain  whether  or  not  the  loss  and  damage  by  fire  was  one 
that  was  not  excepted  by  this  policy;  if  not,  then  your  next 
inquiry  will  be,  did  she,  at  the  time  required  by  this  policy, 
furnish  to  this  company,  or  its  authorized  agent,  proofs  of  loss 
such  as  are  required  by  that  condition  of  the  policy;  if  she  did 
not,  was  that  provision  of  the  policy  required  on  her  part  to  be 
complied  with  waived  by  the  company  or  any  of  its  authorized 


INSURANCE — FIRE,   ACCIDENT,    LIFE.  1665 

agents?  If  not,  was  she  by  the  act  of  the  company,  or  its  au- 
thorized agents,  prevented  from  complying  with  it  and  furnish- 
ing to  the  company  within  the  specified  time  such  proofs  of  loss? 

Sec.  1886.  Waiver  of  proofs  of  loss — Burden  of  proving  au- 
thority of  agent  on  plaintiff — Instructions  as 
to  waiver  of  conditions — By  agent. 

It  is  admitted  in  the  pleadings  and  admitted  in  the  trial  that 
the  proofs  of  loss  were  not  furnished  within  the  time  specified 
in  the  policy.  The  plaintiff  seeks  to  avoid  the  effect  of  failing 
to  comply  with  this  condition  of  the  policy  by  showing  that  it 
was  waived  by  the  company,  or  by  its  agent,  or  that  the  de- 
fendant company,  or  its  agent,  prevented  her  by  their  conduct 
from  thus  furnishing  proofs  of  loss.  Now,  I  say  to  you,  gentle- 
men, that  that  provision  of  the  policy  can  be  waived  after  a  fire 
— after  a  loss — by  the  company  by  its  president,  or  officer,  or 
any  agent  authorized  to  act  for  and  represent  it,  no  matter  what 
he  may  be  designated,  whether  adjuster,  or  solicitor,  or  what 
not,  it  depends  upon  his  power  to  represent  the  company  in  the 
insurance  business  whether  or  not  he  has  authority  to  waive  that 
provision  of  the  policy.  And  if  the  agent  has  general  authority 
to  make  contracts  of  insurance,  to  fill  out  and  issue  policies,  to 
collect  premiums,  and  to  represent  the  company  in  its  business 
of  prosecuting  the  insurance  business,  he  has  power  to  repre- 
sent it  in  all  matters  incident  thereto.  And  if  you  should  find 
from  the  testimony  that  the  agent,  S.,  had  authority  to  repre- 
sent the  company  here  in  the  transaction  of  its  business  as  an 
insurance  company,  the  procuring  of  insurance,  the  filling  out 
and  issuing  or  policies,  making  contracts  of  insurance,  and  the 
collection  and  handling  of  its  moneys,  he  had  power  to  represent 
the  company  in  waiving  the  provisions  of  the  eontracl  thus  made 
by  him.  The  burden  of  establishing  this  authority  of  this  agent 
is  upon  the  plaintiff,  and  if  you  should  find  he  w.-is  thus  author- 
ized, then  you  will  look  into  the  testimony  and  determine 
whether  or  not  he  did  waive  the  performance  of  this  provision 
of  this  contract  within  the  fifteen  days.     If  he  did  not  do  it 


1666  INSTRUCTIONS  TO  JURY. 

by  express  terms,  did  he  by  Ms  act  and  conduct  lead  the  plaintiff 
to  understand,  by  what  he  said  and  what  he  did,  that  a  strict 
compliance  with  that  provision  of  this  policy  was  waived  and 
would  not  be  insisted  upon?  Or  did  the  adjuster,  having  au- 
thority to  adjust  and  settle  these  losses,  lead  her  by  his  conduct 
and  declarations  to  understand  that  a  strict  performance  of  that 
provision  of  the  policy  would  not  be  required?1 

i  From  United  Fireman's  Ins.  Co.  v.  Kukral,  Supreme  Court,  unreported, 
No.  1699  (13-161).  Judgment  of  circuit  court  affirmed,  31  W.  L. 
B.  233. 

Waiver. — There  is  a  waiver  if  the  company  notify  the  insured  that  they 
will  pay  in  any  event,  2  C.  S.  C.  R.  186.  Investigation  without 
waiting  for  proofs  is  a  waiver,  2  Am.  L.  Rec.  336.  Waiver  may 
he  after  as  well  as  before  the  time  stipulated  for  presenting 
proofs,  7  C.  C.  356.  If  an  agent  tells  the  assured,  after  an  examina- 
tion of  the  loss,  that  "nothing  further  is  required,"  it  is  a  waiver 
of  the  preliminary  proofs  of  loss,  even  though  there  is  a  clause 
providing  that  no  agent  has  power  to  waive  any  condition.  Bisli 
v.  Hawkeye  Ins.  Co.,  69  la.  184.  If  an  agent  authorized  to  settle 
a  loss  induces  the  assured  to  forbear  bringing  suit,  the  company 
waives  the  limitation.  Stevens  v.  Citizen's  Ins.  Co.,  69  la.  658. 
The  requirements  of  a  policy  that  proofs  of  loss  shall  be  given  as 
soon  as  possible,  may  be  waived  by  the  insurer's  conduct  and  nego- 
tiations. Dohn  v.  Farmer's  Joint  Stock  Ins.  Co.,  6  Lansing,  275. 
Evidence  that  the  person  who  solicited  insurance  used  language 
to  the  insured  which  might  have  induced  him  to  postpone  making 
and  forwarding  the  proofs  within  the  time  limited,  was  evidence 
to  sustain  a  waiver  of  the  condition.  Norton  v.  Renssalaer  Ins. 
Co.,  7  Cow.  645.  The  adjuster  may  waive  proofs.  Aetna  Ins.  Co. 
v.  Shyer,  et  al.,  85  Ind.  362.  The  adjuster  may  waive  and  if  he 
places  the  refusal  to  pay  loss  Avholly  upon  other  grounds,  it  is  a 
waiver  of  the  right  to  defend  a  suit  on  the  ground  that  such  proofs 
were  not  made.  Eggleston  v.  The  Council  Bluff  Ins.  Co.,  65  la. 
308.  The  company  may  waive  proofs,  and  proofs  may  then  be 
made  in  the  prescribed  time  after  the  waiver,  where  it  is  shown 
that  the  insured,  without  any  fault  or  fraud  on  his  part,  is 
unable  to  procure  certain  of  the  proofs  of  loss  required  by  the 
policy  of  insurance,  he  may  recover  without  a  literal  compliance 
with  the  proofs  of  the  policy  in  this  respect,  for  the  law  will  not 
require  an  impossible  thing.  As  to  waiver  by  act  of  agent  in 
furnishing  blanks  for  proofs,  see  88  Pa.  St.  230,  13  Phila.  551. 
The  fire  insurance  company  received  and  retained  proofs  of  loss 
without  objection,  and  they  were  twice  asked  in  writing  to  inform 
the  insured  if  it  wished  for  any  further  statement  made;  no  reply. 
Held,    that    the    insurance    company    waived    the    defense.     Grange 


INSURANCE — FIRE,   ACCIDENT,    LIFE.  1667 

Mill  Co.  o.  Western  Ins.  Co..  US  111.  396;  Continental  Life  Ina. 
Co.  v.  Rogers,  119  111.  479.  Proofs  of  loss,  or  objection  to  the 
form  of  proof,  is  waived  when  the  company  bases  its  refusal  to  pay 
on  other  grounds.  Hartford  Protection  Ins.  Co.  v.  Manner,  2  O.  S. 
452.  Objections  to  the  preliminary  proofs  will  be  considered  as 
waived,  if.  after  they  are  rendered,  no  specific  objections  are  pointed 
out,  and  the  assured  is  informed  that  his  claim  will  be  considered 
on  the  merits,  and  a  claim  is  rejected,  finally,  upon  the  grounds 
that  the  company  is  not,  in  any  event,  liable  to  pay  the  loss. 
The  Globe  Ins.  Co.   r.  Boyle,  et  al.,  21  O.  S.  130. 

gee.  1887.  Conditions  as  to  time  of  proof  of  loss— And  proof 
—When  right  to  sue  accrues — What  is  a 
sufficient  notice — Notice  and  proof  of  loss — 
Waiver  of — How  made. 

After  reciting  the  substance  of  the  conditions,  proceed : 

These  conditions  are  binding  upon  the  plaintiff,  and  it  can 
not  recover  unless  it  has  shown  that  it  performed  them,  or  has 
shown  waiver  of  such  performance  on  their  part  by  the  defend- 
ant. The  notice  and  proof  of  loss  must  be  furnished  or  waived, 
too,  for  sixty  days,  before  the  insured  is  entitled  to  payment 
or  has  a  right  to  bring  a  suit  for  the  same.  If  the  insured 
brings  suit  within  the  sixty  days,  he  must  fail,  except  in  the 
event  of  the  company  denying  all  liability  on  the  policy.  In 
the  latter  event  an  action  may  be  commenced  without  waiting 
the  time  limited — sixty  days.1 

Waiver  of  proof  of  loss  does  not  make  the  claim  due  at  once; 
the  company  would  still  be  entitled  to  the  sixty  days  after  the 
waiver  to  investigate,  and  for  such  other  purposes  as  it  might 
want  the  time  for,  except  as  stated— it  notifies  the  insured  that 
it  will  not  pay  in  any  event.  In  the  latter  event,  the  eondition 
that  no  action  be  brought  within  sixty  days  after  proofs  of  loss 
is  deemed  waived.  So  also  a  denial  of  all  liability,  made  after 
inquiring  into  the  loss,  on  the  ground  thai  the  loss  is  not  within 
the  policy,  or  that  the  policy  is  void  is  a  waiver  of  the  clause 
requiring  proofs  of  loss. 

A  notice  of  the  loss  given  immediately  after  the  fire,  or  as 
soon  thereafter  as  it  can  be  done  with  reasonable  diligence,  to 


1668  INSTRUCTIONS  TO  JURY. 

the  agent  of  the  company  at  the  place  where  the  fire  occurred, 
or  with  such  diligence  causing  notice  of  the  loss  to  be  brought 
to  the  knowledge  of  the  company,  is  a  sufficient  compliance 
with  the  condition  requiring  notice  of  the  loss  to  be  given  to 
the  company.1 
■>  Bliss,  Life  Ins.,  sec.  355-8;  Wool,  Ins.,  page  728. 

Sec.  1888.  Waiver  of  proofs  may  be  inferred  from  acts  of 
company — Mere  silence,  nor  sending  agents 
to  investigate,  nor  attempt  to  compromise 
will  not  amount  to  waiver — What  other  acts 
in  connection  therewith  will. 

"The  requirement  of  preliminary  proofs  of  loss  is  a  formal 
condition  inserted  in  the  policy  solely  for  the  benefit  of  the 
insurer.  That  such  proofs  may  be  waived,  in  whole  or  in  part, 
is  well  settled  as  a  legal  proposition.  The  waiver  may  be  by 
the  direct  action  of  the  insurer,  or  by  his  general  agent  by  virtue 
of  his  authority.  The  waiver  may  be  express,  or  it  may  be 
inferred  from  the  denial  of  obligation  by  the  insurer  exclusively 
for  other  reasons."1 

A  waiver  may  be  inferred  from  the  acts  and  declarations 
of  the  company,  or  of  its  authorized  agents  acting  within  the 
scope  of  their  employment.  The  adjuster,  employed  by  the 
defendant  to  act  for  it  in  the  matter,  was  the  agent  of  the 
company,  and  all  he  did  in  the  matter  within  the  scope  and 
line  of  his  employment  and  duties  as  such  adjuster  were  the 
acts  of  the  company  and  binding  upon  it. 

Mere  silence  on  the  part  of  the  company  will  not  amount 
to  a  waiver  of  proof  of  loss ;  nor  would  the  sending  of  agents 
to  make  inquiry  or  investigation  into  the  matter  of  the  loss; 
nor  would  even  an  attempt  to  compromise  the  matter,  either 
or  all  of  them,  in  themselves  amount  to  a  waiver  of  proofs  of 
loss,  provided  nothing  was  done  while  so  engaged  that  would 
cause  a  man  of  ordinary  judgment  and  discretion  to  believe 
that  formal  proofs  of  loss  were  waived.  But  if  such  agent  or 
agents,  while  so  engaged,  act  in  the  matter  so  as  to  cause  the 


INSURANCE FIRE,   ACCIDENT,   LIEE.  1669 

insured  to  believe  that  proofs  of  loss  are  waived,  and  their 
acts  are  such  as  would  have  caused  a  man  of  ordinary  discre- 
tion and  judgment  to  so  believe,  and  the  insured,  by  reason 
thereof,  refrain  from  making  such  proof,  such  acts  will  amount 
to  a  waiver  of  such  proof.  If  the  company,  by  its  adjuster  or 
agent,  proceeds  to  investigate  the  matter  of  the  loss  on  its 
merits,  and  by  what  it  does  causes  the  insured  to  believe,  and 
a  man  of  ordinary  judgment  under  the  circumstances  would 
have  so  believed,  that  it  is  only  the  amount  of  the  loss  that  is 
in  dispute,  and  nothing  else,  between  the  parties,  that  will 
amount  to  a  waiver  of  proofs  of  loss.  So,  as  said,  an  abso- 
lute refusal  to  pay  on  the  merits  of  the  claim  or  a  denial  of 
liability  to  pay  in  any  event  will  amount  to  a  waiver.  The 
company  must  not  by  its  acts,  or  by  the  acts  of  its  agents 
acting  within  the  line  of  their  duties  and  authority  as  such 
agents,  do  anything  that  will  throw  the  insured  off  his  guard 
and  cause  him  to  believe  that  proofs  of  loss  are  not  wanted 
by  the  company.  If  such  acts  are  such  as  would  cause  a 
man  of  ordinary  judgment  and  discretion  to  so  believe  in 
like  circumstances,  and  the  insured  so  believed  and  acted  on 
such  belief,  the  company  will  be  held  to  have  waived  such 
proofs. 

And  if  the  company  waived  such  proofs,  it  can  not  after- 
wards recall  or  reclaim  such  waiver,  and  demand  or  insist  upon 
such  proofs.  If  once  waived,  the  company  can  not  afterwards 
insist  upon  the  performance  of  the  condition  requiring  such 
proof. 

From  the  fact,  if  a  fact,  that  the  company  sent  an  agent 
to  the  place  of  the  loss  to  make  investigation  in  regard  to  the 
same,  and  from  what  the  evidence  may  show,  if  anything,  he 
did  about  making  such  investigation;  from  the  fact,  if  a  fact, 
that  the  company  sent  an  adjuster  to  adjust  such  loss,  and 
from  all  such  adjuster  did  in  regard  to  the  matter;    from  tin' 

fact   that   the   plaintiff   and    defendants,   on   ,   pursuant 

to  the  condition  in  the  policy — set  out  in  printed  matter 
in  the  third  defense   as  amended — selected   two  persona   to  ap- 


1670  INSTRUCTIONS  TO  JURY. 

praise  and  estimate  at  the  true  cash  value  the  damage  by  fire 
to  such  of  said  property  covered  by  the  policy  as  might  be  found 
in  a  damaged  condition,  as  alleged  in  said  defense;  the  fact 
of  such  appraisement  being  made  and  reported  by  such  apprais- 
ers ;  the  fact,  if  a  fact,  that  D.  and  such  adjuster  agreed  upon 
the  loss  upon  other  of  the  property  covered  by  the  policy; 
from  what  the  evidence  shows  was  done  and  passed  between 
said  adjuster  and  D.  while  about  the  matter  of  attempting  to 
adjust  such  loss,  altogether,  from  all  these  and  from  all  cir- 
cumstances disclosed  by  the  evidence,  you  will  determine  whether 
or  not  the  company  waived  proof  of  loss,  the  burden  of  proving 
such  waiver  by  a  preponderance  of  the  evidence  being  upon 
the  plaintiff.  If  so  waived  sixty  days  before  suit  brought,  the 
plaintiff  is  entitled  to  a  verdict  if  it  has  otherwise  made  out  its 
case.  If  such  waiver  was  made  within  sixty  days  before  the 
suit  was  brought,  the  plaintiff  can  not  recover,  unless  the  plain- 
tiff proves  that  there  was  an  absolute  refusal  by  the  company 
to  pay  in  any  event.2 

i  Ins.  Co.  v.  Parisot,  35  0.  S.  40,  41. 

2  Wm.   E.    Evans,   J.,    in   Germania   Fire    Insurance   Co.    v.    Dunn    &    Co., 
supreme   court,  judgments  affirmed,   charge   approved. 

Sec.  1889.  Proof  of  loss— If  policy  of  insurance  destroyed 
it  is  duty  of  company  to  furnish  copy  or  in- 
formation— Failure  on  its  part  may  estop 
company  from  claiming  proofs  not  in  time. 

If  you  find  from  the  testimony  that  the  policy  of  insurance 
was  destroyed  by  fire,  and  she  did  not  have  it  in  her  power  to 
furnish  a  written  description,  or  copy  of  the  written  portion 
of  the  policy,  and  did  not  have  within  herself  the  specific  direc- 
tions that  the  policy  required  to  be  complied  with  in  that 
respect,  and  she  applied  to  the  agent  of  this  company  for  the 
information,  or  for  a  copy  of  the  policy  thus  to  enable  her  to 
fulfill  that  condition  of  the  policy,  it  was  the  duty  of  that  agent, 
and  the  duty  of  the  company,  to  furnish  her  with  that  informa- 
tion thus  possessed  by  them  and  not  possessed  by  her,  and  the 
refusal  on  their  part  to  furnish  her  with  that  information,  if  a 


INSURANCE — FIRE,  ACCIDENT,   LIFE.  1671 

compliance  on  their  part  at  the  time  she  asked  for  it  would 
have  enabled  her  to  furnish  proof  of  loss  within  the  time 
required  by  the  policy,  and  she  was  not,  by  reason  of  that 
refusal,  able  to  furnish  proofs  of  loss  thus  required,  that  would 
be  an  act  upon  their  part  which  would  prevent  her  from  fur- 
nishing her  proofs  of  loss,  and  would  estop  them  from  setting 
up  that  defense.  The  rule  in  regard  to  estoppel  is  in  substance 
as  alleged  here,  and  the  rule  in  regard  to  waiver  is  simply 
honesty  and  fair  dealing  between  the  parties;  what  has  the 
plaintiff  a  right  to  believe  and  fairly  consider  under  all  the 
circumstances  of  what  was  said  and  what  was  done — what  had 
she  a  right  to  fairly  believe  and  act  upon  under  these  circum- 
stances ?x 

i  From  United  Fireman's  Ins.  Co.  v.  Kukral,  supreme  court,  unreported, 
No.  1699  (13-161),  judgment  of  circuit  court  affirmed,  31  W.  L.  B. 
233. 

Sec.  1890.     Burden  of  proof  in  action  for  loss  by  fire — Proofs 
of  loss,  etc. 

The  burden  of  proof  of  the  material  allegations  of  the  plain- 
tiff's petition  that  are  denied  by  the  answer  is  upon  the  plain- 
tiff; that  is  to  say,  it  being  admitted,  as  I  have  told  you,  that 
the  policy  was  issued,  the  date,  the  amount  of  insurance,  the 
property  covered,  the  occurrence  of  the  fire,  and  that  in  pay- 
ment of  the  loss  or  damage  there  made,  it  then  devolves  upon 
the  plaintiff  to  establish  by  a  preponderance  of  the  evidence 
that  notice  of  such  fire  was  given  by  the  insured  immedi- 
ately after  the  occurrence,  and  that,  as  soon  thereafter  as  pos- 
sible for  the  plaintiff  to  do  so,  the  plaintiff  made  out  and 
furnished  to  the  defendants  proofs  of  loss  as  required  by  the 
policy  you  have  in  force. 

The  fact,  if  such  you  find  to  be  the  fact,  that  the  proofs  of 
loss  were  made  by  the  plaintiff  to  defendant  company,  as  pro- 
vided by  the  terms  of  the  policy,  does  not  relieve  the  plaintiff 
in  the  action  from  the  burden  of  proof  by  a  preponderance  of 
the  evidence  of  the  amount  of  the  loss  or  damage  sustained  by 
the  fire  to  the  property   insured.     The   proofs   of  loss,   if  you 


1672  INSTRUCTIONS  TO  JURY. 

find  that  any  were  made,  are  simply  evidence  for  the  insured 
of  compliance  with  the  conditions  of  the  policy  requiring  them, 
but  not  of  the  facts  contained  in  the  proofs  of  loss.  Therefore 
it  devolves  upon  the  plaintiff  to  prove  by  a  preponderance 
of  the  evidence  the  amount  of  loss  or  damage  by  reason  of 
the  fire  to  the  said  property  insured,  and  which  loss  or  dam- 
age the  policy  provides  shall  be  based  upon  the  actual  cash 
value  of  the  property  at  the  time  of  such  fire.  If  the  plain- 
tiff has  by  a  preponderance  of  the  evidence  proven  these  facts, 
then  the  plaintiff  will  be  entitled  to  recover  in  such  sum  as 
the  jury  shall  find  from  the  evidence  to  be  the  amount  of 
such  loss  or  damage  caused  by  the  fire,  unless  the  jury  find 
by  a  preponderance  of  the  evidence  the  existence  of  certain 
other  facts,  or  any  of  them,  as  claimed  and  alleged  by  the 
defendant  in  his  answer,  and  of  which  testimony  has  been 
offered  tending  to  prove.1 

i  Melhorn,  J.,   in  Carnahan   v.  Perm.  Fire  Insurance  Co.,  Hancock  County 
Common  Pleas. 

Sec.  1891.  Insurance  of  partnership  property — Was  partner- 
ship dissolved  at  time  insurance  issued — 
Representation  as  to  ownership  of  property. 

In  order  to  recover  in  this  action  the  plaintiff  must  prove  by 
a  preponderance  of  the  evidence  that  said  D.  &  Co.  was  a 
partnership  doing  business  in  Ohio  as  alleged;  and  that,  at  the 
time  the  policy  of  insurance  was  issued  and  at  the  time  the 
property  described  therein  was  injured  or  destroyed  by  fire,  such 
property  was  owned  by  said  partnership ;  that  said  property 
was  injured  or  destroyed  by  fire  as  claimed,  and  the  amount  of 
such  injury  or  loss;  and  that  the  plaintiff  performed  all  the 
conditions  of  said  policy  on  its  part,  or  that  the  defendant 
waived  such  of  the  conditions  as  were  not  performed  by  it  sixty 
days  before  bringing  this  action;  that  such  of  said  conditions 
as  by  the  terms  of  the  policy  were  required  to  be  performed  sixty 
days  before  suit  brought  were  performed,  or  the  performance 
thereof  was  waived  by  the  defendant  sixty  days  before  the  suit 
was  brought. 


INSURANCE — FIRE,   ACCIDENT,   LIFE.  1673 

The  policy  of  insurance  is  the  contract  between  the  parties. 
The  indorsement  upon  or  attached  to  it,  specifying  how  much 
of  said  $5,000,  the  amount  named,  is  upon  specified  classes  of 
said  property,  is  a  part  of  the  policy.  Both  parties  are  bound 
by  and  have  a  right  to  insist  upon  the  performance  of  all  the 
terms  and  conditions  of  the  contract  of  insurance — the  plain- 
tiff as  much  as  the  defendant,  and  the  defendant  as  much  as 
the  plaintiff,  and  either  as  much  as  an  individual  might  do 
under  like  circumstances. 

(a)  The  plaintiff  must  have  been,  as  alleged,  a  partnership 
doing  business  in-  Ohio,  and  the  owner  of  the  said  property. 
If,  at  the  time  the  policy  of  insurance  was  issued  the  firm  or 
partnership  of  D.  &  Co.  had  been  dissolved  and  was  not  in 
existence,  then  the  representation  that  the  property  was  the 
property  of  D.  &  Co.  would  avoid  the  policy,  and  the  plaintiff 
can  not  recover;  *  *  *  If  it  had  not  been  dissolved  before 
the  policy  was  issued,  or  before  the  fire,  if  it  was  an  existing 
partnership,  and  the  owner  of  the  goods,  it  can  recover,  if  it 
has  in  other  respects  made  out  its  case  under  the  instructions. 
If  D.  &  Co.  was  a  partnership  for  the  purpose  only  of  carrying 
on  a  banking  business,  the  fact,  if  a  fact,  that  D.  purchased 
the  goods  for  the  firm  of  D.  &  Co.  in  consideration  for  and  in 
satisfaction  of  a  judgment  in  favor  of  D.  &  Co.  against  the 
then  owner  thereof,  without  consulting  C.  or  getting  his  consent 
thereto,  did  it  in  good  faith,  thinking  it  for  the  best  interest  of 
D.  &  Co.  to  do  so;  and  the  further  fact,  if  a  fact,  that  he, 
thinking  it  for  the  best  interest  of  D.  &  Co.  to  do  so,  kept  the 
store,  of  which  the  goods  in  question  constituted  the  stock,  open 
as  a  going  concern  and  sold  goods  therefrom  for  a  time,  will 
constitute  no  defense  for  the  defendant  in  this  action.1 

i  Wm.    E.    Evans,    J.,    in    Germania    Fire    Insurance    Co.    v.    Dun    &    Co., 
supreme  court,  judgments  affirmed,  Fayette  county. 

Sec.  1892.     Vacancy  of  property — Breach  of  condition  as  to. 

There  is  a  provision  connected  with  the  clause  which  reads: 
"Shall    become    vacant   and    unoccupied    without    the    written 


1674  INSTRUCTIONS  TO  JURY. 

assent  of  the  company  indorsed  thereon."  The  defendant  says, 
that  this  property  became  vacant  and  unoccupied,  and  that  it 
was  destroyed  by  fire  while  in  that  condition,  and  that  that 
condition  was  not  with  the  assent  of  the  company  written  or 
indorsed  upon  the  policy.  In  order  to  forfeit  this  policy  under 
this  clause,  it  is  necessary  that  the  premises  in  question  should 
be  both  vacant  and  unoccupied.  There  seems  to  be  a  distinction 
drawn  betwen  ocupancy  and  vacancy  of  premises,1  but  the 
language  of  this  policy  is  such,  being  connected  with  the  con- 
junction, and,  that  both  occupancy  and  vacancy  must  exist,  or 
a  want  of  occupancy  and  a  vacancy  of  the  premises  must  exist 
in  order  to  enable  the  defendant  to  avail  itself  of  this  provision 
of  the  contract.  If  no  person  is  living  in  the  building — in  the 
premises — sleeping  there,  lodging  there,  occupying  it  in  the 
usual  way  of  a  dwelling-house  being  occupied  by  persons,  then 
it  is  unoccupied  within  the  meaning  of  this  clause  of  the  policy. 
1.  What  constitutes  occupancy.  And  the  having  of  a  few 
articles  of  furniture,  whether  it  be  carpets  or  anything  else 
in  the  house,  is  not  such  an  occupancy  or  use  of  the  premises 
as  would  render  it  not  a  vacant  house  or  unoccupied  dwelling- 
house.  Therefore,  if  you  find  under  the  proof  in  this  case 
that  at  the  time  this  policy  was  issued  it  was  occupied  by  a 
tenant  of  M.  R.,  and  that  subsequently  that  tenant  moved 
away  from  the  premises,  and  after  the  tenant  was  gone,  M. 
R.,  with  a  view  to  a  future  occupancy  of  the  premises  by 
herself,  commenced  making  preparations  for  such  occupancy  by 
placing  in  the  building  a  carpet  or  two  carpets,  and  a  chair  or 
two,  that  would  not  relieve  the  plaintiff  or  M.  R.  from  the  force 
and  effect  of  this  provision  of  the  contract,  providing  the  fire 
which  destroyed  or  injured  the  premises  occurred  before  anyone 
actually  moved  into  the  premises,  or  so  placed  therein  furniture 
and  goods  that  it  could  not  be  said  to  be  vacant.'-  The  mere 
intention  of  a  party  to  move  into  premises  is  not  an  occupancy  in 
fact  of  those  premises.  The  intention  to  move  the  necessary 
articles  for  housekeeping  into  the  premises  does  not  constitute 
such  an  occupancy  of  the  building  by  furniture  and  goods  as  to 
relieve  it  from  the  charge  of  being  vacant.    If  you  find  that  there 


INSURANCE — FIRE,  ACCIDENT,   LIFE.  1675 

was  in  the  building  at  the  time  of  the  fire  substantial  articles 
and  furniture  for  housekeeping  by  a  family  or  by  one  or  two 
persons,  the  place  would  not  be  vacant  within  the  meaning  of 
this  provision  of  the  policy.  But  if  only  a  portion,  simply  an 
article  like  a  carpet  or  two  carpets,  or  a  chair  or  so  was  in  there, 
if  that  is  all  or  substantially  all  there  was  of  it,  the  plans  simply 
consisting  of  an  intention  to  put  other  articles  therein  in  the 
future  and  to  go  there  and  occupy  the  building,  that  would  not 
be  such  an  occupancy  of  the  premises  as  to  relieve  the  plaintiff 
from  the  obligations  of  this  provision  of  the  contract,  nor  would 
it  deprive,  in  other  words,  the  defendant  from  availing  itself  of 
this  provision  of  the  contract  in  case  any  fire  occurred  while 
the  premises  were  in  this  situation  and  condition.3 

i  Moody  v.  Insurance  Company,  52  O.  S.  12. 

2  Cf.   State  v.  Tuttgerding,  5  W.   L.  B.  464.     A  tenant's  removal  perma- 

nently renders  premises  vacant,  42  0.  S.  519.  Leaving  furniture, 
all  in  house  ready  for  use  is  not  leaving  it  vacant,  52  O.  S.  12. 

3  From    Hanover    Fire    Insurance    Company   v.    Citizens'   Savings   &    Loan 

Association.  Supreme  court,  unreported,  No.  1562.  Judgments  of 
circuit  court  and  common  pleas  affirmed,  27  W.  L.  B.  216.  Charge 
approved. 

Sec.  1893.    When  is  a  building  vacant  or  unoccupied. 

What  constitutes  vacancy  or  non-occupancy  of  a  building  is  a 
question  of  law ;  but  whether  a  building  is  vacant  or  unoccupied 
or  not,  within  the  meaning  of  the  law,  is  a  question  of  fact 
for  the  jury.1 

To  constitute  occupancy  of  a  dwelling-house,  it  is  not  essential 
that  it  be  continuously  used  by  a  family.  The  family  may  be 
absent  from  it  for  health,  pleasure,  business  or  convenience  for 
reasonable  periods,  and  the  house  will  not,  on  that  account,  be 
considered  as  vacant  or  unoccupied.  Under  a  policy  which 
declares  that  no  liability  shall  exist  under  it  for  less  or  damage 
to  an  unoccupied  building,  but  docs  not  stipulate  that  the 
insured  building  shall  be  used  as  a  dwelling,  or  require  any  par- 
ticular mode  of  occupancy.  Strictly  construed,  occupancy  for 
any  lawful  purpose  would  satisfy  tie'  condition  and  preserve  the 
obligation  of  the  policy.    It  is  not  in  any  event  essential  that  the 


1676  INSTRUCTIONS  TO  JURY. 

building  be  put  to  all  the  uses  ordinarily  made  of  a  dwelling,  or 
to  some  of  those  uses  all  the  time;  nor  that  the  whole  house 
should  be  subjected  to  that  use.  Nor  is  a  dwelling-house  con- 
sidered as  unoccupied  merely  because  it  has  ceased  to  be  used  as 
a  family  residence  where  the  household  goods  remain  ready  for 
use  and  it  continues  to  be  occupied  by  one  or  more  members  of 
the  family,  who  have  access  to  the  whole  building  for  the 
purpose  of  caring  for  it,  and  who  do  care  for  it  and  make  some 
use  of  it  as  a  place  of  abode.2 

i  Moody  v.   Insurance  Company,  52  O.  S.  12. 

-Moody  v.   Insurance  Company,  52  O.  S.  12;  Insurance  Company  v.   Kier- 

nan,  83  Ky.  468;  Richards  on  Insurance,  sec.  56:  May  on  Insurance, 

sec.  247. 

Sec.  1894.     Vacancy — Waiver  of  forfeiture  by  reason  of  va- 
cancy of  premises — Burden  of  proof. 

If  you  find,  gentlemen  of  the  jury,  that  these  premises  were 
in  fact  vacant  and  unoccupied,  and  Mrs.  R.,  or  anyone  represent- 
ing her,  gave  notice  to  the  duly  authorized  agent  of  the  defendant 
of  that  fact,  and  you  find  that  the  agent  upon  receiving  that 
notice  said  ' '  all  right, ' '  or  words  to  that  effect,  ' '  that  he  would  be 
over  and  see  her,"  that  would  constitute  a  waiver  of  this 
provision  of  the  policy  forfeiting  the  same  by  reason  of  a 
vacancy  and  unoccupancy  of  the  premises;  in  other  words,  it 
was  within  the  power  of  the  company  to  waive  this  provision 
of  the  policy— of  its  contract,  and  this  waiver  could  be  made  by 
an  agent  of  the  company — could  waive  the  enforcement  of  that 
provision  of  the  policy,  could  waive  its  endorsement  thereon,  or 
the  assent  of  the  company  endorsed  thereon,  and  if  you  find 
from  the  testimony  that  such  was  the  case  before  this  fire  and 
after  this  policy  was  issued  and  before  the  fire  occurred,  that 
notice  was  given  in  this  way  to  the  agent  and  he  made  the  reply 
"all  right,"  that  he  would  be  over  and  see  about  it,  and  the 
fire  occurred  after  the  notice  was  given  and  before  he  came  to 
see  about  it,  it  would  be  a  waiver  of  that  provision  of  the  policy 
and  would  not  interfere  with  the  right  of  the  plaintiff  to  recover 
in  this  action. 


INSURANCE FIRE,   ACCIDENT,   LIFE. 


1677 


On  the  question  of  the  preponderance  of  the  evidence  I  will 
say  to  you  that  the  burden  does  rest  upon  the  plaintiff  to  show 
the  waiver.  If  you  find  that  this  property  was  vacant  and 
unoccupied,  and  the  fire  occurred  during  that  vacancy  and 
unoccupancy  of  the  building,  if  it  is  claimed  a  waiver  of  that 
provision  was  made,  the  burden  of  proof  to  show  that  waiver 
rests  upon  the  plaintiff;  and  I  will  also  say  in  this  connection 
the  burden  of  proof  rests  upon  the  defendant  to  show,  and  it 
must  satisfy  you  by  a  preponderance  of  the  evidence  that  this 
building  was  vacant  and  unoccupied  at  the  time  of  the  fire.1 

i  From  Hanover  Fire  Ins.  Co.  v.  Citizens  Savings  &  Loan  Association, 
supreme  court,  unreported,  No.  1552  (12-741)  ;  judgment  of  circuit 
court  and  common  pleas  affirmed,  27  W.  L.  B.  216,  charge  approved. 

Sec.  1895.     Total  or  partial  loss. 

It  is  a  question  of  fact  for  you  to  find  from  the  evidence 
whether  this  was  a  total  loss  by  the  owner  of  this  property,  or 
whether  it  was  only  partial.  If  you  find  from  the  evidence  that 
it  was  a  total  loss,  and  further  find  such  a  state  of  facts  as 
prevented  the  defendant  from  availing  himself  of  this  clause 
of  the  forfeiture  to  which  I  have  called  your  attention,  or,  in 
other  words,  find  that  it  was  not  vacant  and  unoccupied  when 
the  fire  took  place — I  say  if  the  premises  were  not  vacant  and 
unoccupied,  and  the  loss  was  a  total  loss,  and  no  fraud  was 
perpetrated  in  procuring  this  insurance,  and  no  act  had  been 
done  to  increase  the  risk  after  the  policy  was  issued,  this  plain- 
tiff would  have  the  right  to  recover  the  full  amount  named   in 

this  policy,  $ .    If,  however,  you  find  that  it  was  a  partial 

loss  only,  then  the  plaintiff  would  be  entitled  to  recover  only  the 
full  value  of  the  loss  actually  sustained  to  the  building,  whatever 
the  proof  may  show  you  that  loss  to  have  been.  To  make  this 
more  clear,  I  will  repeat  it.  If  3'ou  find  thai  the  building  was 
totally  destroyed,  or  rather  a  total  loss  by  reason  of  this  fire, 
and  that  the  policy  was  procured  without  fraud,  and  nothing 
had  been  done  with  the  premises  after  the  issuing  of  the  policy 
to  increase  the  risk,   and   the   premises   were   not  vacant   and 


1678  INSTRUCTIONS  TO  JURY. 

unoccupied    at   the   time   of   the   loss,    the    plaintiff   would    be 
entitled   to   recover  the   full   amount   of  the   policy,    which   is 

claimed  to  be  $^ .     But  if  you  find  that  the  loss  was  a 

partial  loss  and  not  a  total  loss,  then  the  recovery  would  be 
simply  the  actual  damage  done  to  the  property  by  the  fire.1 

i  From  Hanover  Fire  Ins.  Co.  v.  Citizens  Savings  &  Loan  Association, 
supreme  court,  unreported,  Xo.  1552;  judgments  of  circuit  court 
and  common  pleas  affirmed,  27  W.  L.  B.  216,  charge  approved. 

Sec.  1896.    Compromise  of  loss  obtained  under  duress. 

The  court  now  says  to  you,  as  a  matter  of  law,  that  if  you 
find  there  was  a  contract  of  compromise,  and  if  the  only  con- 
sideration that  entered  into  that  contract  of  compromise  was 
simply  the  settlement  and  adjustment  of  the  claim  in  dispute 
between  them,  then  that,  in  this  case,  under  this  evidence,  this 
plaintiff  can  not  recover,  provided  you  find  there  was  such  a 
contract  of  compromise.  But  the  court  further  says  to  you  that 
if  you  find  there  was  such  a  contract  of  compromise  made,  and 
if  any  part  of  that  contract  or  compromise  was  an  agreement  not 
to  prosecute  this  plaintiff  upon  the  charge  of  burning  her  own 
property,  then  I  say  to  you  such  a  contract  of  compromise  was 
void  and  is  of  no  force  and  effect  as  a  defense  in  this  case.  But, 
as  I  said  before,  if  it  was  no  part  of  the  consideration  of  the 
contract  or  compromise  that  they  agreed  not  to  prosecute  her 
for  the  charged  crime  of  arson,  then  I  say  to  you  the  plaintiff 
can  not  recover  under  the  evidence  and  law  as  applied  in 
this  case. 

Sec.  1897.    Evidence  as  to  value  of  property  as  reflecting  on 
charge  of  destroying  property. 

Evidence  has  been  offered  in  this  case  touching  upon  the  value 
of  the  property  insured,  and  it  is  maintained  by  the  defendant 
that  the  evidence  shows  that  all  the  property,  including  the  land 
upon  which  the  buildings  were  situated,  were  not  of  the  value 
for  which  this  property  was  insured;  on  the  other  hand  the 
plaintiff  maintains  that  the  property  was  of  greater  value.    This 


INSURANCE — FIRE,   ACCIDENT,   LIFE.  1670 

evidence  "was  offered  and  bears  upon  the  motives  of  the  plaintiff, 
whether  or  not  it  would  be  to  his  interest  to  have  this  property 
destroyed  and  thus  reap  a  benefit  by  the  insurance,  and  there- 
fore it  is  admitted  for  the  purpose  of  showing  what,  if  any, 
motives  the  plaintiff  could  have  had  for  destroying  this  property ; 
would  it  be  to  the  interest  of  this  plaintiff  so  to  do.1 
iGillmer,  J.,  in  Hiekox  v.  Ins.  Co.,  Trumbull  County  Common  Pleas. 

Sec.  1898.     Cancellation  of  policy. 

You  are  instructed  that  it  was  competent  for  the  plaintiff 
and  the  defendant  by  its  agent  to  surrender  and  cancel  said 
policy  or  contract  of  insurance  at  any  time  between  the  date  of 
the  said  policy  and  the  date  of  the  said  loss  or  fire.  And  if  you 
find  from  the  evidence  that  the  plaintiff  and  the  defendant  by  its 
agent  did  agree  to  surrender  and  cancel  said  contract  of 
insurance  at  any  time  between  the  issuance  of  the  policy  and 
the  date  of  the  fire,  then  the  defendant  would  not  be  liable  for 
any  loss  accruing  after  the  surrender  or  cancellation  of  said 
contract  policy  of  insurance.  And  before  you  can  find  that 
such  policy  or  contract  of  insurance  was  surrendered  by  the 
plaintiff  to  the  defendant  by  the  mutual  consent  of  the  parties, 
you  must  find  that  the  minds  of  the  parties  met,  and  that  the 
plaintiff  and  defendant  undertook  to  and  did  make  an  agreement 
to  surrender  the  policy  with  the  understanding  that  the  same 
was  to  be  canceled  and  of  no  binding  force  or  effect  thereafter. 

In  determining  whether  there  was  a  cancellation  by  the 
mutual  consent  of  the  parties,  you  should  look  into  and  determine 
from  the  evidence  whether  it  was  the  intention  and  under- 
standing of  the  parties  at  the  time  the  policy  was  delivered  by 
the  plaintiff  to  the  agent  of  the  company  that  the  same  was  to  be 
canceled  and  surrendered  and  of  no  force  and  effect.  Look  into 
and  determine  what  was  said  and  done  between  them,  their 
conduct  in  relation  thereto,  and  from  it  determine  whether  there 
was  at  that  time  an  intention  on  the  part  of  the  plaintiff  and 
the  defendant  thai  Hie  contract  was  then  surrendered  and 
canceled  and  of  no  further  binding  force. 


1680  INSTRUCTIONS  TO  JURY. 

The  defendant  had  a  right  by  the  terms  of  the  policy  of 
giving  the  plaintiff  five  days'  notice  of  its  intention  so  to  do 
before  canceling  said  policy  without  the  consent  of  the  parties; 
and  if  you  find  the  defendant  did  cancel  the  policy  after  giving 
the  plaintiff  five  days'  notice  of  its  intention  so  to  do,  then  such 
policy  would  not  be  in  force  and  the  plaintiff  would  not  be 
entitled  to  recover  herein.  But  before  the  defendant  could 
cancel  the  policy  under  the  provisions  thereof  it  must  give  the 
plaintiff  five  days '  notice  of  its  intention  so  to  do,  and  must  have 
returned  to  the  plaintiff  the  unearned  premium  thereon,  unless 
there  was  some  waiver  of  the  notice  so  required  and  of  the 
return  of  said  unearned  premium. 

The  plaintiff  had  the  right  to  waive  the  five  days'  notice, 
but  whether  he  did  so  is  a  question  of  fact  for  you  to  determine. 
*  *  *  It  is  not  necessary  to  put  a  written  cancellation  upon 
the  policy  in  order  to  complete  its  cancellation.  The  cancellation 
of  the  policy  might  be  made  without  placing  any  writing 
thereon.1 
i  Nye,  J.,  in  Leonard   v.  Queen  Ins.   Co. 

Sec.  1899.     Rescission — Necessary  party  to  suit  for. 

"If  each  policy  was  respectively  made  out  on  the  application 
of  a  person  other  than  plaintiff,  and  was  made  payable  to  such 
person,  then  such  person  is  a  necessary  party  to  the  surrender, 
release,  or  rescission  of  the  policy  issued  to  him  or  her,  and  if  it 
be  further  found  that  the  policy  was  not  surrendered,  released, 
or  rescinded  by  such  party,  but  continued  in  force  and  binding 
on  the  company,  then  the  plaintiff  can  not  recover. ' ' * 
i  From  Insurance  Co.  v.  Rodgers,  33  O.  S.  533. 

Sec.  1900.    Defense  of  false  representations  as  to  value  of 
property — Burden  of  proof. 

It  may  be  a  difficult  matter  to  formulate  a  charge  that  will 
answer  in  all  cases  where  there  are  false  representations  made 
to  procure  insurance,  but  the  following  is  a  case  of  frequent 


INSURANCE — FIRE,   ACCIDENT,   LIFE.  1681 

occurrence  and  is  therefore  given  as  found  in  the  judge's  charge 
from  which  it  is  taken. 

"As  a  ground  of  defense  it  is  alleged  by  the  defendant  that 
the  plaintiff,  in  order  to  obtain  the  insurance  from  the  defendant 
company  and  other  companies,  to  induce  the  defendant  company 

to  issue  the  policy  sued  on,  and  to  take  the  risk  equal  to  ■ 

part  of  the  item  described  in  the  policy,  falsely  and  fraudulently 
represented  to  the  defendant  that  the  plaintiff  kept  in  his  store 

building  an  average  stock  of  merchandise  to  the  value  of  $ , 

and  kept  and  carried  store  furniture  and  fixtures  to  the  cash 

value  of  $ ,  and  the  cash  value  of  the  property  in  the 

store  building  was  more  than  $ .     The  defendant  avers 

that  these  representations  were  false,  that  the  plaintiffs  at  the 
time  they  were  made  knew  them  to  be  false,  and  that  they  were 
made  for  the  purpose  of  procuring  an  excessive  insurance,  and 
for  the  purpose  of  defrauding  the  insurance  companies,  including 
the  defendant  company.  The  defendant  says  that  the  real  value 
of  the  property  at  the  time  the  policy  was  issued  and  at  all  times 

thereafter  did  not  exceed  $ ,  which  the  plaintiff  well  knew, 

and  the  defendant  did  not  know,  but  that  the  defendant,  relying 
upon  the  representations  and  believing  them  to  be  true,  was 
thereby  induced  to  issue  the  policy  which  he  otherwise  would 
not  have  done.  *  *  *  To  establish  this  defense  claimed  by 
the  defendant  the  burden  of  proof  is  upon  the  defendant.  It 
must  show  by  a  preponderance  of  the  evidence  that  the  plaintiff 
did  make  these  representations  alleged;  that  they  were  false,  and 
that  the  plaintiff  at  the  time  they  were  made  knew  them  to  be 
false,  that,  the  defendant  did  not  know  that  they  were  false,  and 
that  they  were  made  to  induce  the  defendant  to  issue  the  policy, 
and,  if  the  defendant  did  so  satisfy  you,  the  plaintiff  can  not 
recover  and  your  verdict  should  be  for  the  defendant.  But  if 
you  find  that  the  plaintiff  did  not  make  such  representations,  or, 
if  made,  that  they  were  true  and  not  false  or  fraudulent,  then 
this  defense  fails.  If  you  find  from  the  evidence  that  the 
defendant  concurred  with  his  co-insurers  on  the  property 
insured  ;ind  fixed  the  value  of  the  insurance  as  claimed  by  the 


1682  INSTRUCTIONS  TO  JURY. 

plaintiff,  the  defendant  can  not,  under  these  circumstances  and 
in  the  absence  of  any  fraud  on  the  plaintiff's  part,  complain  of 
the  value  so  fixed  on  the  said  property  in  so  far  as  claiming 
fraud  on  the  plaintiff's  part  in  this  respect.1 

i  Melhorn,  J.,  in  Carnahan  v.  Penn.  Fire  Ins.   Co.,  Hancock  County  Com- 
mon Pleas.     As  to  overvaluation,  see  6  O.  C.  C.  1. 

Sec.  1901.     Defense  when  fraudident  concealments  or  misrep- 
resentations were  made. 

The  facts  in  the  case  from  which  the  following  instructions 
are  taken  appear  in  many  such  actions  about  as  follows: 

' '  That  the  policy  provided  that  if  the  party  insured  concealed 
or  misrepresented,  either  in  writing  or  otherwise,  any  material 
fact  or  circumstances  concerning  the  insurance,  or  in  case  of  any 
fraud  or  false  swearing  by  the  insured,  touching  any  matter 
relating  to  the  insurance,  whether  before  or  after  the  loss,  it 
should  be  void,  and  also  that  as  soon  as  possible  after  the  fire 
the  party  insured  should  render  a  particular  account,  proved, 
signed,  and  sworn  to  by  the  insured,  stating  his  knowledge  and 
belief  as  to  the  origin  of  the  fire,  also  the  full  value  of  the 
property  covered  by  the  policy  at  the  time  and  immediately 
preceding  the  loss,  and  the  amount  of  loss  or  damage  sustained. 
It  was  charged  in  this  case  that  a  false  statement  was  made  by 
the  plaintiff,  and  that  the  plaintiff  falsely  swore  to  the  statement, 
and  that  the  provisions  of  the  policy  were  therefore  violated. 

"You  are  instructed  that  in  order  to  constitute  a  valid  defense 
under  the  condition  of  the  policy,  and  in  relation  to  the  con- 
cealment and  misrepresentations,  or  fraud,  or  false  swearing 
by  the  insured,  it  must  appear  from  the  evidence  that  it  was  in 
relation  to  some  material  fact  or  circumstances  concerning  the 
insurance,  and  that  it  was  done  by  the  plaintiff  firm,  or  by  its 
members,  or  either  of  them,  willfully  or  knowingly,  and  that 
it  was  the  intention  to  deceive  and  defraud  the  officers  and  agents 
of  the  defendant  company.  If  you  find  from  a  preponderance 
of  the  evidence  that  the  plaintiff  firm  by  its  members,  or  either 
of  them,  by  concealing  or  misrepresenting  or  falsely  swearing 


INSURANCE — FIRE,   ACCIDENT,   LIFE.  1683 

touching:  any  material  fact  or  circumstanci  .  concerning  this 
insurance,  as  claimed  by  the  defendant,  this  in  law  would  be  such 
fraud  upon  the  defendant  as  would  render  the  policy  void. 

Fraud  and  false  swearing,  in  order  to  prevent  recovery,  must 
be  intentional  with  the  parties  defrauding,  aud  it  may  be  with 
reference  to  any  material  matter  concerning  the  insurance,  it 
may  be  by  overvaluing  the  loss,  or  by  undervaluing  what  they 
have,  or  it  may  be  swearing  to  a  loss  of  property  which  was  not 
in  existence,  and  in  many  other  ways.  It'  the  insured,  with 
reference  to  the  quantity  and  value  of  the  goods  insured,  made 
a  claim  which  he  knew  to  be  false,  and  to  defraud  the  defendant, 
he  can  not  recover  anything.  If  you  find  then  from  the  ] pre- 
ponderance of  the  evidence  that  the  allegations  contained  in  this 
defense  are  true,  then  the  plaintiff  can  not  recover  and  your 
verdict  should  be  for  the  defendant."1 

i  Melhorn,  J.,  in  Carnahan  v.  Perm.  Fire  Ins.  Co.,  Hancock  County  Com- 
mon Pleas. 

Doctrine  of  concealment  applies  to  fire  insurance.  The  insured  must  not 
misrepresent  or  designedly  conceal,  unless  the  fact  is  of  unusual 
peril,  and  not  discoverable  by  the  insurer.  Ins.  Co.  v  Ilarmer, 
2  0.  S.  452;  Ins.  Co.  v.  Ins.  Co.,  5  0.  S.  450.  The  materiality  of 
the  fact  concealed  is  for  the  jury,  2  0.  S.  452. 

Sec.  1902.     False  representations  as  to  other  insurance. 

The  false  representations  material  to  the  risk  that  would  avoid 
the  policy  must  be  to  some  existing  fact  affecting  the  property 
insured  at  the  time  the  risk  was  taken,  or  during  the  existence 
of  the  policy.  And  we  say  to  you  that  any  substantial  represen- 
tation as  to  the  fact  whether  the  property  to  be  insured  was  or 
was  not  insured,  and  was  or  was  not  covered  by  other  valid 
subsisting  insurance,  would  be  material  to  the  risk,  ami  any 
substantia]  misrepresentations  in  these  respects,  intentionally 
or  fraudulently  made  by  the  plaintiff  to  the  agent  to  induce  him 
to  issue  a  policy,  and  if  the  policy  was  issued  by  reason  of  such 
misrepresentations,  the  defendant,  relying  thereon  and  not 
knowing  them  to  be  false,  would  avoid  the  policy. 

When  verbal  representations  are  made  material  to  the  risk, 
it  is  not  sufficient  that  they  be  false  to  avoid  the  policy;  it  musl 


1684  INSTRUCTIONS  TO  JURY. 

appear  that  they  are  both  false  and  fraudulent  to  have  that 
effect.  If  they  were  honestly  made,  though  they  may  be  untrue 
in  fact,  the  policy  is  not  thereby  rendered  void.  But  material 
representations  made  by  plaintiff  to  the  agent  issuing  the  policy, 
which  she  assumed  to  be  within  her  personal  knowledge,  or  which 
she  made  recklessly,  not  knowing  them  to  be  true,  are  false  and 
fraudulent  in  the  legal  sense,  if  made  with  an  intent  to  deceive 
the  insurer,  if  they  were  untrue  in  fact,  and  were  relied  upon 
by  the  insurer  in  absence  of  knowledge  to  the  contrary  upon  his 
part  in  taking  the  risk,  although  the  plaintiff  did  not  know 
them  to  be  false. 

If  nothing  was  said  before  the  making  and  delivery  of  policy 
by  either  party  as  to  encumbrances  or  rather  insurance  on  the 
property  insured,  the  company  will  be  presumed  to  have  waived 
these  conditions  of  the  policy,  if  the  insured  acted  in  good  faith.1 

(a)   Good  faith  of  plaintiff. 

As  bearing  upon  good  faith  of  plaintiff  the  value  of  the  prop- 
erty insured  has  been  permitted  to  remain  before  you,  but 
unless  you  find  from  a  preponderance  of  the  evidence  that 
the  plaintiff  was  guilty  of  intentional  fraud  in  respect  to  the 
matter  wherewith  she  is  charged  with  fraud  in  the  defendant's 
answer,  it  can  not  be  used  by  you  to  reduce  the  amount  of 
recovery  below  the  amount  for  which  the  dwelling-house  was 
insured,  if  you  find  the  plaintiff  entitled  to  recover. 

If  you  should  find  from  a  preponderance  of  the  evidence  that 
the  plaintiff  was  so  guilty  of  intentional  fraud  as  herein  defined 
and  set  up  in  the  answer  to  the  charge  of  insurance  or  mortgage 
incumbrance,  then  she  can  not  recover  for  any  loss  to  her  house. 

If  you  should  find  against  the  plaintiff  upon  the  insurance 
upon  the  dwelling-house,  if  you  should  find  that  the  risk  was 
taken  at  the  solicitation  of  the  agent  and  not  of  the  plaintiff, 
and  that  she  made  no  intentional  fraudulent  misrepresentations 
respecting  the  household  furniture  and  other  personal  property 
covered  by  the  policy,  you  may  find  for  her  for  the  value  of 
such  personal  property,   not   exceeding  $ ,   as  you   find 


INSURANCE — FIRE,   ACCIDENT,  LIFE.  1685 

from  the  evidence  was  covered  by  the  policy  and  was  destroyed 
by  the  fire,  with  interest  thereon  from .2 

1  A  clause  prorating  recovery  in  case  of  other  insurance  is  not  an  assent 

to  obtaining  other  insurance,  28  O.  S.  69.  Such  condition  is  waived 
if  the  interrogatory  in  the  application  is  left  unanswered,  24  0.  S. 
345. 

2  Voris,  J.,  France  v.  Norwich  Union  Fire  Ins.  Co.,  Summit  County  Com- 

mon Pleas. 

Sec.  1903.     Same,  continued — Return  of  premium. 

If  you  find  that  the  plaintiff  was  guilty  of  intentional  fraud 
as  herein  limited  and  defined  (ante,  sec.  1902),  the  defendant 
need  not  offer  to  return  the  premium  paid  on  this  policy  for  in- 
terest on  its  invalidity  because  of  the  fraud  set  up  in  its  answer.1 

i  Voris,  J.,  in  France  v.  Norwich  Union  Fire  Association,  Summit  County 
Common  Pleas. 

Sec.  1904.     Fraudulent  proofs  of  loss. 

"The  jury  are  instructed  that  if  they  believe  from  the  evidence 
that  the  policy  sued  on  contained  a  provision  that  all  fraud,  or 
attempt  at  fraud,  by  false  swearing  or  otherwise,  shaM  cause  a 
forfeiture  of  all  claims  under  the  policy,  and  that,  if  they 
further  believe  from  the  evidence  that  plaintiffs  have  fraudu- 
lently offered  to  defendant  proofs  of  loss  under  the  policy, 
containing  material  statements  in  regard  to  the  loss  under 
said  policy,  which  the  plaintiffs  knew  to  be  false  at  the  time 
the  same  were  offered,  you  will  find  for  the  defendant."  1 
i  From  Shulter  r.  Ins.  Co.,  62  Mo.  237. 

Sec.  1905.     Fire  insurance — Ownership  of  property,  insurable 
interest. 

The  defendant  claims  that  the  policy  of  insurance  issued  upon 
in  this  case  was  void  and  never  took  effect  because  the  plaintiff 
at  the  time  the  policy  was  issued  was  not  the  owner  of  the 
property  insured.  You  are  instructed  therefore  that  if  the 
owner  had  no  insurable   interest   in   the   property,   no  interest. 

Therein    at    the   time   the    policy    was    issued,   the   policy    would   be 
void.    But  if  you  find  from  the  evidence  that  he  had  an  insurable 


1686  INSTRUCTIONS  TO  JURY. 

interest  in  the  property,  the  policy  would  not  be  void,  unless 
you  further  find  that  the  plaintiff,  at  the  time  he  procured  said 
policy,  falsely  and  fraudulently  represented  his  interest  therein 
to  the  agent  of  the  company.  And  if  you  find  from  the  evidence 
that  at  the  time  the  policy  was  issued  the  plaintiff  had  the  legal 
title  to  the  property  and  was  in  possession  thereof,  the  mere 
fact  that  a  man  of  some  other  name  claimed  an  interest  therein 
would  not  of  itself  vitiate  the  policy. 

If  you  find  that  the  plaintiff  at  the  date  of  the  policy  was 
the  absolute  owner  of  the  property,  then  he  would  have  an 
insurable  interest  therein.  And  if  the  plaintiff  at  the  date  of 
the  policy  had  a  legal  title  to  the  property  and  was  the  owner 
thereof,  but  that  he  was  under  obligations  to  account  to  some 
other  persons  for  a  portion  of  the  proceeds  thereof,  he  would 
still  have  an  insurable  interest  therein. 

But  unless  you  find  from  the  evidence  that  he  falsely  repre- 
sented to  the  agent  of  the  defendant  company  at  the  time  of 
the  issuing  of   said   policy   the   true   nature    of   his    title   and 
interest  therein,  said  policy  would  not  be  void.1 
i  Nye,  J.,  in  Leonard  r.  Queen  Ins.  Co. 

Sec.  1906.     Fire  insurance — Defense  as  to  provision  requiring 
production  of  books  for  examination. 

The  following  instructions  may  cover  the  usual  provisions  in 
policies  touching  the  matter  of  the  production  of  books  for  the 
examination. 

The  burden  of  proof  upon  this  issue  is  upon  the  defendant, 
and  unless  the  jury  finds  by  a  preponderance  of  the  evidence 
that  what  is  alleged  as  to  the  production  of  books  and  vouchers 
in  this  matter  on  the  part  of  the  insured,  as  required  by  the 
policy,  is  true,  this  defense  is  not  maintained.  It  was  the  duty 
of  the  plaintiff  to  comply  with  this  provision  of  the  policy  and 
produce  for  examination  its  books,  accounts,  invoices,  which  it 
then  had,  upon  the  request  of  the  defendant.  But  only  such 
books  and  other  vouchers  as  were  reasonably  in  the  power  of  the 
insured  to  furnish  need  be  furnished.  If  you  find  from  the 
evidence  that  the  plaintiff  did  this,  and  he  was  ready  and  willing 


INSURANCE — FIRE,   ACCIDENT,   LIFE.  1687 

so  tr»  do,  it  would  be  a  compliance  on  his  part  with  this  provision 
of  the  policy. 

If.  however,  you  should  find  that  the  plaintiff,  having  books 
of  account  and  other  vouchers,  refused  to  furnish  them  or  permit 
their  inspection  at  a  reasonable  time  and  place,  or  if  you  find 
that  books  of  account,  bills,  and  other  vouchers,  or  any  of  them, 
were  by  the  plaintiff  fraudulently  kept  from  the  defendant  for 
the  puroose  of  rendering  it  impossible  for  the  defendant  to 
determine  the  amount  of  stock  and  loss,  then  the  plaintiff  can 
not  recov^*-.1 

i  Melhorn,   J.,    in   Carnahan    v.    Fire   Ins.   Co.,   Hancock   County   Common 
Pleas. 

Sec.  1907.  Defense — That  large  quantities  of  oil  and  petro- 
leum were  stored,  and  drawn  at  night  in 
violation  of  policy. 

The  burden  of  proof  to  establish  this  defense  is  upon  the 
defendant,  and  if  you  find  by  a  preponderance  of  the  evidence 
that  the  plaintiff,  shortly  before  the  fire,  caused  to  be  carried 
into  the  building  in  which  the  insured  property  was  kept  a 
large  quantity  of  coal-oil  or  petroleum,  which  was  not  used,  and 
which  was  not  intended  to  be  used  for  lighting  the  store,  or 
for  sale  therein,  and  was  not  kept  for  either  purpose,  as  provided 
in  the  policy,  and  that  the  oil  was  drawn  from  the  barrel  in 
which  it  was  kept  and  stored  in  the  night  time  and  not  by 
daylight,  by  the  direction  or  with  the  knowledge  of  the  plaintiff, 
this  would  invalidate  the  policy,  unless  the  storing  of  such  oil 
as  it  appears  from  the  evidence  was  brought  to  the  defendant's 
knowledge,  and  the  companies  consented  to  such  storing  of  oil 
in  the  building.  If  the  jury  find  from  the  evidence  that  coal-oil 
or  petroleum  was  brought  into  the  store  by  the  plaintiff,  or  by 
one  of  its  members,  for  the  purpose  of  defrauding  the  defendant, 
and  for  the  purpose  of  increasing  any  hiss  or  damage  that  might 
accrue  to  said  property  by  fire,  and  that  by  act  or  procurement 
of  the  plaintiff  firm,  or  one  of  its  members,  the  oil  was  put  upon 
the  floor  of  the  building  containing  the  insured  property,  or 
upon  the  goods,  or  both,  and  that  by  igniting  or  burning,  caused 


1688  INSTRUCTIONS  TO  JURY. 

a  large  part  of  the  damage  or  loss  which  accrued  from  the  fire, 
if  you  find  such  to  be  the  fact,  the  plaintiff  can  not  recover.  It 
must  affirmatively  appear  that,  if  any  such  act  as  this  was  done, 
it  was  done  by  the  plaintiff  firm,  either  by  one  or  both  of  its 
members,  or  by  some  one  with  the  knowledge  and  direction  of  the 
members  of  the  plaintiff  firm,  or  either  of  them,  and  unless 
it  does  so  appear  the  plaintiff  can  not  be  held  responsible  for 
such  act,  and  the  plaintiff's  right  to  recover  would  not  be  lost 
by  reason  thereof.1 

i  Melhorn,  J.,   in  Carnahan  v.  Penn.  Fire  Ins.  Co.,  Hancock  County  Com- 
mon Pleas. 

Sec.  1908.    Defense — That  fire  was  caused  by  willful  act  of 
procurement. 

After  reciting  the  charge  as  made  by  the  pleadings  and  the 
position  of  the  plaintiff  thereon  that  the  fire  was  caused  by  the 
willful  act  or  procurement  by  the  plaintiff,  the  instruction  may 
proceed  as  follows : 

To  establish  the  truth  of  this  charge  the  burden  of  proof  is 
on  the  defendant. 

The  rule  that  applies  to  criminal  acts  when  the  party  is 
charged  with  the  unlawful  act  of  burning  property  that  the  jury 
must  be  satisfied  beyond  a  reasonable  doubt  of  the  truth  of  the 
charge  does  not  apply  in  civil  cases.  The  jury  are  permitted  to 
find  for  or  against  the  respective  parties  in  the  action  by  a 
preponderance  of  the  evidence.  The  defendant  must  satisfy 
you  by  a  preponderance  of  the  evidence  that  the  allegations 
contained  in  its  answer  upon  this  ground  of  defense  are  true, 
and  unless  this  is  done  you  can  not  find  in  favor  of  the  defendant 
upon  this  issue.1 

i  Melhorn,  J.,  in  Carnahan  v.  Penn.  Fire  Ins.  Co.,  Hancock  County  Com- 
mon Pleas. 

Sec.  1909.     Insurance   on   steamboat — Negligence   of   owner's 
agent — Seaworthiness  of  boat. 

"If  she  was  in  a  seaworthy  condition,  and  sufficient^  manned 
for  such  a  boat  so  lying  up,  and  the  loss  was  occasioned  by  the 


INSURANCE — FIRE,   ACCIDENT,   LIFE.  1689 

mere  negligence  and  want  of  proper  care  of  her  watchman  and 
those  having  the  care  of  her,  the  plaintiff  will  be  entitled  to 
recover,  if  he  has  proven  all  other  necessary  facts,  for  such 
negligence  is  a  peril  insured  against.  But  if  the  negligence 
consisted  in  allowing  the  boat  to  become  unseaworthy,  and  she 
was  lost  thereby,  there  can  be  no  recovery. 

"The  boat  need  not  have  been  sufficiently  seaworthy  to 
perform  a  voyage,  but  it  must  have  been  for  her  preservation 
under  all  ordinal  circumstances  while  tied  up  during  such 
period  of  non-user,  and  if  she  encountered  a  peril  insured  against 
which  she  would  have  safely  resisted  if  seaworthy,  but  in 
consequence  of  being  unseaworthy  was  sunk  by  encountering  a 
peril  insured  against,  then  the  plaintiff  can  not  recover. 

"And  further,  if  the  boat  was  seaworthy  when  laid  up,  but 
thereafter  her  seams  were  suffered  to  become  open  by  exposure, 
which  the  plaintiff  failed  to  have  properly  caulked,  and  she  was 
not  in  a  safe  and  seaworthy  condition  requisite  for  her  safety 
when  tied  up,  then  the  plaintiff  can  not  recover. 

"The  boat  must  have  been  kept  in  such  condition  a.s  to  be 
reasonably  sufficient  to  withstand  the  ordinary  perils  attending  a 
boat  so  laid  up  at  that  time  and  place.  If  she  was  not  so  kept, 
the  plaintiff  can  not  recover,  no  matter  what  peril  she  may  have 
encountered.  If  she  was,  and  encountered  wind  and  waves  by 
which  she  broke  her  spars,  was  driven  against  the  bank,  and 
careened  so  as  to  be  thrown  on  her  side  in  such  a  way  a.s  to  take 
in  water  at  her  seams  which  were  far  enough  above  the  water- 
line  so  as  not  to  endanger  her  safety  while  lying  up  under 
ordinary  circumstances,  and  sunk  in  consequence  thereof,  then 
the  plaintiff  can  recover,  if  he  had  provided  and  kept  at  the  boat 
a  force  of  men  sufficient  to  take  care  of  the  boat  under  ordinary 
perils,  whether  all  such  men  were  directly  in  his  employ  and 
pay  or  not."  ' 

i  From  [nsurance  ('".  v.  Parisot,  3.1  0.  S.  35. 

Sec.  1910.     Accident  insurance — Proof  of  claim. 

The   ease    from    which    the    following   instruction    was   taken 

alleged  that  immediately  after  the  accident  and  death  due  proof 


1690  INSTRUCTIONS  TO  JURY. 

and  proper  notice  thereof,  together  with  full  name  and  address 
of  the  insured,  was  given  to  the  defendant.  That  on  a  certain 
day  named,  due  and  affirmative  proof  of  death,  resulting  from 
external,  violent,  and  accidental  means,  was  furnished  to  the 
defendant. 

If  you  find  from  the  evidence  that  blank  forms  were  provided 
by  the  company  for  plaintiff,  and  the  same  were  filled  out, 
sworn  to  before  a  notary  public  by  plaintiff  and  others,  and 
transmitted  to  H.,  state  agent  for  the  company,  by  mail,  and 
the  same  were  received  by  the  company,  and  thereupon  the 
company  in  reply  thereto  notified  the  plaintiff  by  the  letter, 

"exhibit  A,"  that  her  claim  under  accident  policy  No.  , 

written  by  this  company  on  the  life  of  G.  S.,  has  been  disallowed, 
you  may  treat  the  condition  of  the  policy  as  a  proof  of  death 
of  the  insured,  as  having  been  complied  with  on  the  part  of  the 
plaintiff,  or  that  the  defendant  waived  further  proofs  of  death.1 

i  Voris,  J.,  in   Worstler   v.   Travellers'  Ins.   Co.,   Summit  County  Common 
Pleas. 

Sec.  1911.    Accident  insurance — What  necessary  to  recovery 
for  death  upon. 

To  enable  the  plaintiff  to  recover,  it  must  appear  from  a 
preponderance  of  the  evidence  that  the  death  of  the  insured 
resulted  from  bodily  injuries,  occurring  during  the  term  of  the 
insurance,  through  external,  violent,  and  accidental  means 
independent  of  all  other  causes,  and  that  his  death  resulted  from 
such  injuries  alone  within  ninety  days. 

The  burden  is  upon  the  plaintiff  to  establish  by  such  pre- 
ponderance of  the  evidence  that  his  death  resulted  from  such 
injuries,  and  that  she  made  other  allegations  in  the  petition 
controverted  by  the  defendant 's  answer. 

If  the  alleged  fall  was  the  proximate  cause  of  his  death, 
though  he  may  have  had  internal  disease  or  bodily  infirmity 
at  the  time  of  such  fall,  but  from  which  he  would  not  have  died 
but  for  the  injuries  resulting  from  the  alleged  fall,  so  that  you 
can  say  that  his  death  did  not  result  wholly  or  partly,  directly 


INSURANCE FIRE,   ACCIDENT,   LIFE.  1691 

or  indirectly,  from  disease  or  bodily  infirmity  other  than  that 
resulting  from  the  injury,  then  the  fact  that  he  had  such  disease 
or  bodily  infirmity  at  the  time  of  the  alleged  injuries  would  not 
be  sufficient  to  defeat  his  right  to  recover. 

By  proximate  cause  is  meant  a  cause  from  which  the  death  of 
the  insured,  in  the  natural  and  ordinary  course  of  events,  would 
be  likely  to  follow ;  but  if  the  death  did  result  wholly  or  partially, 
directly  or  indirectly,  from  disease  or  bodily  infirmity  existing 
at  the  time  of  the  fall,  so  that  you  can  say  from  the  evidence 
that  such  disease  or  bodily  infirmity  was  the  proximate  cause  of 
his  death,  she  can  not  recover.1 

iVoris,  J.,  in  Worstler  v.  Travellers'   Ins.   Co.,   Summit  County  Common 
Pleas. 

Sec.  1912.     Consideration — Adequacy    or    sufficiency    not    in- 
quired into. 

Was  this  a  sufficient  or  adequate  consideration  for  the  assign- 
ment from  J.  L.  to  plaintiffs?  While  it  is  necessary  that  the 
consideration  for  the  assignment  be  of  some  value,  yet  the  law 
will  not  enter  into  an  inquiry  as  to  the  adequacy  or  sufficiency 
of  the  consideration  for  the  assignment,  but  will  leave  the  parties 
to  be  the  sole  judges  of  the  benefits  to  be  derived  from  this 
contract,  unless  the  inadequacy  or  insufficiency  of  consideration 
is  so  great  as  of  itself  to  prove  fraud  or  imposition.  x 

i  Horace  L.  Smith,  J.,    in   Sabin   v.   Corcoran,   52   O.   S.   636.     Sec  Judy   v. 
Louderman,  48  O.  S.  562. 

Sec.  1913.     Insurance  —  Application   for  —  Statements,   how 
treated. 

The  plaintiff  (widow)  is  bound  by  the  policy  and  statements 
made  by  her  husband,  Ur.  M.  O'll.,  which  arc  a  part  of  the 
contract.  The  application  and  statements  tin  rein  arc  warran- 
ties, and  arc  binding  on  her  as  it'  made  by  her,  if  by  its  terms 
the  application  did  warrant.  The  insurance  company  had  a 
right  to  make  such  application  to  he  a  part  of  the  policy,  and  had 
a   right  to  rely  upon  such  warranties.      The  statement  in  his 


1692  INSTRUCTIONS  TO  JURY. 

application  that  he  had  never  been  rejected  was  material,  and 
was  warranted  to  be  true  by  him;  and  it  would  be  a  fraud  on 
the  defendant  for  him  to  state  that  he  had  never  been  rejected. 
But  if  at  the  time  the  company  received  this  last  application  it 
knew  that  Dr.  M.  O'H.  had  been  rejected  by  it  in  the  past,  then 
that  fact  would  not  operate  in  this  case  to  debar  the  recovery; 
for  the  company,  in  such  case,  issuing  the  policy  with  the  knowl- 
edge of  the  untrue  fact,  is  barred  from  setting  it  up  as  a  defense. 

So,  too,  as  to  representations  and  warranties  as  to  his  health 
and  his  relatives;  he  warranted  these  statements  true,  and  they 
were  matters  upon  which  the  company  had  a  right  to  rely. 
However,  bearing  upon  all  these  answers  and  warranties, 
Section  3625  of  the  statutes  of  this  state  provides  and  says  that 
no  answer  made  in  his  application  for  a  policy  shall  bar  the  right 
to  recover,  unless  it  be  proved  that  the  answer  was  willfully 
false  and  fraudulent ;  that  it  was  material,  and  induced  the 
company  to  issue  the  policy,  and  but  for  that,  the  policy  would 
not  have  been  issued.  This  is  giving  the  substance  or  meaning 
of  the  statute  referred  to,  and  is  stated  by  me  as  the  law 
governing  this  case. 

I  have  said  to  you  that  all  these  answers  were  material ;  but 

unless  they  or  some  of  them  were  willfully  false,  and  made  by 

Dr.  M.  O'H.,  and  induced  the  company  to  issue  the  policy,  and 

but  for  such  answer  the  policy  would  not  have  been  issued,  then 

any  such  untrue  answer  could  not  operate  as  a  bar  to  recovery 

herein.1 

i  G.  F.  Robinson,  J.,  in  Total  Abstinence  Life  Association  of  America 
v.  O'Hara.  Dismissed  in  supreme  court  No.  3357.  Charge  approved 
by  Circuit   Court,  Portage  County. 

Sec.  1914.     Insurance — Life — Misrepresentations  made  by  in- 
sured. 

"A  misrepresentation  or  false  statement  made  in  his  applica- 
tion for  insurance,  by  a  person  whose  life  is  insured,  respecting 
a  material  fact,  avoids  the  policy  issued  upon  that  application, 
and  this  whether  the  misrepresentation  was  made  innocently  or 


INSURANCE FIRE,    ACCIDENT,   LIFE.  1693 

designedly.  If,  therefore,  the  jury  believed  from  the  evidence 
that  the  insured,  in  his  application  for  the  policy  or  certificate 
here  sued  on,  stated  that  he  had  no  serious  illness,  or  stated  that 
he  had  not  had  during  the  last  seven  years  any  disease  or  severe 
sickness,  and  that  cither  of  those  statements  were  false  in  any 
respect,  and  are  deemed  by  the  jury  material,  then  whether  the 
insured  intended  to  deceive  or  not,  the  said  policy  or  certificate  is 
void,  and  the  jury  should  find  for  the  defendant,  unless  they 
further  believe  that  the  avoidance  of  the  policy  or  certificate 
has  been  waived  by  the  defendant. ' ' x 
i  Schwarzbaeh  v.  0.  V.  Protective  Union,  25  W.  Va.  640. 

Sec.  1915.     Same,  continued — What  constitutes  waiver  of  mis- 
representations. 

' '  There  can  be  no  waiver  of  the  avoidance  of  a  policy  by  reason 
of  material  false  statements  or  misrepresentations  in  the  applica- 
tion, unless  the  acts  relied  upon  as  showing  the  waiver  were  done 
with  full  knowledge  of  the  facts.  While,  therefore,  the  receipt 
of  premiums  or  assessments  with  full  knowledge  on  the  part  of 
the  defendant  of  facts  working  a  forfeiture  of  the  policy,  might 
constitute  a  waiver  of  such  forfeitures,  yet  the  receipt  of  such 
premiums  or  assessments  in  ignorance  of  such  facts  would  not 
constitute  a  waiver. ' ' l 
>  Schwarzbaeh  v.  O.  V.  Protective  Union,  25  W.  Va.  (540. 

Sec.  1916.     Concealment  of  material  fact  concerning  insurance, 
or  subject  thereof. 

Concealment  is  the  designed  and  intentional  withholding  of 
any  fact,  material  to  the  risk,  which  the  assured  in  honesty  and 
good  faith  ought  to  communicate  to  the  company.  Such  alleged 
aet  of  concealment  involves,  not  only  the  materiality  of  the  fact 
claimed  to  be  withheld,  and  which  ought  to  have  been  com- 
municated, but  also  the  design  and  intention  of  the  insured 
withholding  it. 

The  condition  of  the  policy  regarding  a  concealment  must  !»<■ 
construed  in  the  light  of  the  definition  of  concealment  just  given. 


1694  INSTRUCTIONS  TO  JURY. 

Where  the  materiality  of  the  facts  against  the  concealment  of 
which  the  policy  provides  does  not  appear  from  the  contract  of 
policy,  as  it  does  not  in  this  case,  both  the  question  of  materiality 
of  the  fact  alleged  to  have  been  concealed,  as  well  as  the  intent 
of  the  insured  in  so  concealing  the  same,  are  to  be  drawn  or 
found  from  the  facts  and  circumstances  disclosed  by  the  evidence. 
So  it  is  for  the  jury  to  determine  what  fact  or  facts  were  con- 
cealed, whether  they  were  material,  as  well  as  the  intent  with 
which  the  same  were  concealed.1 

So  if  the  jury  find,  etc. 

In  determining  the  intent  with  which  the  fact,  was  concealed, 
if  the  jury  find  that  it  was  concealed,  it  will  be  essential  for  the 
jury  to  ascertain  and  find  whether  an  inquiry  was  made  con- 
cerning the  fact,  because  the  law  makes  a  distinction  between 
cases  where  an  inquiry  is  made  and  those  where  none  is  made. 
The  rule  of  law  applicable  to  such  question  is  that  when  no 
inquiries  are  made,  the  intention  of  the  assured  becomes  material, 
and  to  avoid  the  policy,  the  jury  must  find,  not  only  that  the 
matter  was  material,  but  also  that  it  was  intentionally  and 
fraudulently  concealed.2 

So,  therefore,  if  the  jury  find,  etc. 

i  Ins.  Co.  v.  Colo.  L  &  M.  Co.,  50  Colo.  424,  116  Pac.  154;  Am.  Ann.  Cas. 

1912,  C.  p.  597. 
2  Id.     Alkan  v.  Ins.   Co.,   53   Wis.   136;    Ins.   Co.   v.  Monroe,   101  Ky.    12; 

Arthur  v.  Ins.  Co.,  35  Ore.  27,  57  Pac.  62,  76  Am.  St.  450. 


CHAPTER   CX. 


INTOXICATING   LIQUOR. 


SEC. 

SEC. 

1917. 

Action    by    wife    against    per- 
son selling  or  furnishing 

1922. 

liquor  to  intoxicated  per- 

1923. 

son — Liability   of   person 

furnishing. 

1924. 

1918. 

Evidence  of   sales  made   after 
suit. 

1919. 

Who  is  keeper  of  place. 

1925. 

1920. 

Defendant  must  know  of  habit 

of  intoxication — Notice — 

1926, 

Damages. 

1921. 

Selling   and  furnishing   intox- 

icating liquors  to   habit- 

1927. 

ual       drunkards  —  What 

1928, 

constitutes  a  sale 

1929 

Same  continued — Intoxication 
defined. 

Same  continued  —  Habitual 
drunkard. 

Sale  of  intoxicating  liquors 
within  two  miles  of  agri- 
cultural fair. 

Same  continued — What  consti- 
tutes a  sale. 

What  constitutes  sale  within 
two  miles  of  agricultural 
fair. 

What  is  intoxicating  liquor. 

What  is  agricultural  fair. 

Sales  by  agent  or  barkeeper. 


Sec.  1917.  Action  by  wife  against  person  selling  or  furnish- 
ing liqnor  to  intoxicated  person — Liability  of 
person  furnishing. 

By  statute  it  is  made  unlawful  and  punishable  for  any  person 
to  furnish  to  any  person  who  is  at  the  time  intoxicated,  or  in 
the  habit  of  getting  intoxicated,  any  intoxicating  liquors  what- 
soever, unless  given  by  a  physician  in  the  regular  course  of 
his  practice. 

This  law  makes  it  unlawful  to  furnish  intoxicating  liquors 
contrary  to  its  provisions.  If  the  defendant  so  furnished  intoxi- 
cating liquors  to  the  husband  of  the  plaintiff,  he  being  at  the 
time,  to  the  knowledge  of  the  defendant,  intoxicated,  or  in  the 
habit  of  getting  intoxicated,  the  act  or  acts  of  so  furnishing 
liquor  were  unlawful. 

1695 


1696  INSTRUCTIONS  TO  JURY. 

The  defendant  can  only  be  made  responsible  for  such  instance 
of  intoxication  of  the  plaintiff's  husband  as  may  have  been 
caused  in  whole  or  in  part  by  liquors  which  he  may  have  so 
illegally  sold  or  furnished. 

If  A.  B.  was  on  a  particular  occasion  or  occasions  intoxicated 
during  said  period,  to  which  intoxication  the  liquors  of  defend- 
ant, so  sold  or  furnished  to  A.  B.,  did  not  contribute  in  whole 
or  in  part,  the  defendant  is  not  responsible  for  such  intoxication. 
But  if  defendant's  liquor,  so  sold  or  furnished  to  A.  B.  during 
such  period,  in  part  caused  the  intoxication  of  said  A.  B.,  the 
defendant  would  be  responsible  for  such  instance  of  intoxication, 
although  liquor  which  was  not  obtained  from  defendant  also  in 
part  caused  or  contributed  to  such  instance  of  intoxication. 
And  if  the  liquor  so  sold  or  furnished  by  defendant  to  A.  B. 
caused  his  intoxication,  either  alone  or  in  connection  with  liquor 
not  obtained  from  defendant,  in  a  sufficient  number  of  instances 
to  satisfy  you  that  A.  B.  was  habitually  intoxicated  by  such 
liquor  of  defendant  acting  alone,  and  also  acting  with  such 
liquor  of  others,  the  jury  should  find  that  defendant  caused  the 
habitual  intoxication  of  A.  B. 

But  if  the  liquor  of  defendant,  so  sold  or  furnished,  caused  in 
whole  or  in  part  the  intoxication  of  A.  B.  in  a  less  number  of 
instances  than  is  required  to  make  him  habitually  intoxicated, 
yet,  if  defendant's  liquor,  thus  sold  or  furnished  to  A.  B., 
caused  his  intoxication  in  one  or  more  instances,  it  would  be 
sufficient,  on  this  second  point,  to  authorize  a  finding  for  plain- 
tiff. "Whether  the  intoxication  which  may  have  thus  been  caused 
by  defendant  was  in  but  a  single  instance,  or  occasional,  or 
habitual,  will  lie  an  important  subject  of  consideration  upon 
the  point  of  injury  to  plaintiff's  means  of  support,  or  in 
assessing  damages. 

If  it  be  found  that  A.  B.  was  intoxicated  in  any  instance  or 
instances,  as  to  which  the  jury  do  not  find  that  the  defendant's 
liquor  so  sold  or  furnished  to  A.  B.,  caused  the  intoxication 
in  whole  or  in  part,  such  instances  of  intoxication  can  only  be 
considered  by  you  upon  the  question  whether  A.  B.  was  in  the 
habit  of  getting  intoxicated,  and  the  defendant  should  not  be 


INTOXICATING    LIQUOR.  1697 

held  responsible  for  any  injury  to  the  plaintiff  which  may  have 
resulted  from  such  intoxication.1 

i  From   Sibila   v.    Bahney,   34   0.    S.    399.     See  Baker    r.   Beckwith,   29   O. 
S.  314. 

Sec.  1918.    Evidence  of  sales  made  after  suit. 

If  it  be  found  from  the  proof  that  defendant,  since  the  com- 
mencement of  the  action,  has  sold  intoxicating  liquors  to  plain- 
tiff's husband  in  violation  of  law,  that  would  afford  no  ground 
whatever  for  a  recovery  on  the  part  of  the  plaintiff ;  but  if  it  be 
found  that  the  plaintiff  ought  to  recover  for  intoxicating  liquors 

sold  to  her  husband  during years  previous  to  the  beginning 

of  this  suit,  the  jury  has  a  right  to  consider  the  fact  that  it  has 
been  repeated,  and  the  unlawful  sale  to  him  indulged  in  since 
its  commencement,  for  the  purpose  of  throwing  light  upon  the 
mind  of  the  defendant  at  the  time  he  sold  the  liquors  during  the 
four  years  prior  to  the  filing  of  plaintiff's  petition;  the  jury 
has  a  right  to  consider  it  in  aggravation  of  damages,  or  as  a 
reason  why  they  should  or  may  be  increased.  Her  right  to 
recover  can  not  be  founded  upon  any  such  sales,  but  the  most 
that  can  be  done  would  be  to  increase  her  recovery  by  way  of 
exemplary  damages  for  such  sales,  if  she  is  otherwise  entitled 
to  a  verdict.1 

]  From  Bean   v.  Oeen.  33  O.  S.  444. 

Sec.  1919.     Who  is  keeper  of  place. 

If  the  defendant  had  the  possession,  care,  and  control  of  the 
room,  and  managed,  conducted,  and  controlled  the  business 
transacted  therein,  and  sold  liquor  in  violation  of  law,  then  h<> 
was  the  keeper  of  the  room  within  the  meaning  of  the  statute, 
whoever  may  have  been  the  actual  owner  of  the  property.1 
i  From  Schultz  v.  The  State,  33  O.  S.  27fi. 

Sec.  1920.     Defendant  must  know  of  habit  of  intoxication — 
Notice — Damages. 

To  authorize  a  recovery  it  must  appear  thai  -I.  W.,  the  husband 

of  the  plaint  iff,  was  a  person  in  the  habit  of  getting  intoxicated. 


1698  INSTRUCTIONS  TO  JURY. 

It  must  also  r.ppear  that  the  defendant  knew  that  he  was  a 
person  in  the  habit  of  becoming  intoxicated  as  it  appears  in  the 
petition.  It  must  appear  that  the  plaintiff  gave  notice  not  to 
sell  to  her  husband  intoxicating  liquors.  This  notice  must  be 
given  in  the  presence  of  witnesses  or  a  witness.  It  must  also 
appear  that  the  notice  was  given  at  the  time  alleged  in  the 
petition ;  it  need  not  be  done  at  the  exact  time  alleged,  but  near 
about  that  time.  It  must  appear  that  the  plaintiff  has  been 
damaged  in  her  means  of  support,  or  her  person,  on  account  of 
alleged  illegal  sales,  if  any  were  made  by  the  defendant  to  the 
husband.  Should  you  find  that  the  defendant  sold  intoxicating 
liquors  to  J.  W.  in  violation  of  law,  within  the  time  charged  in 
the  petition,  or  about  the  times  charged  in  the  petition,  and  that 
the  plaintiff  sustained  damages  by  reason  of  the  intoxication  of 
J.  W.,  caused  thereby  to  her  person,  property,  or  means  of 
support,  the  fact  that  other  persons  sold  liquor  to  J.  W.  in 
Adolation  of  law,  within  that  period,  and  which  liquor  may  have 
contributed  to  increase  the  intoxication  and  consequently  to 
enhance  the  injury  resulting  to  the  plaintiff  therefrom;  such 
facts,  if  shown  to  have  existed,  will  not  exonerate  the  defendant 
from  the  consequences  of  his  wrongful  acts ;  but  on  the  contrary, 
he  will  still  be  responsible  for  all  the  injury  resulting  from  the 
intoxication  of  J.  W.  to  the  plaintiff  caused  by  the  sales  of  liquor. 
If  you  can  separate  the  damages  resulting  from  the  intoxica- 
tion caused  by  illegal  sales  to  the  said  J.  W.  by  the  defendant 
from  the  damages  resulting  from  the  sales  to  J.  W.  by  others, 
you  must  do  so.  But  if  such  separation  can  not  be  made,  you 
will  render  your  verdict  against  the  defendant  for  all  acts 
resulting  in  pecuniary  damages  to  the  plaintiff,  in  person, 
property,  or  means  of  support,  by  reason  of  the  intoxication  of 
J.  W.  to  which  the  sales  of  liquor  by  the  defendant  contributed.1 
J  Gillmer,  J.,  in  Wliittaker  v.  Walsh,  Trumbull  Co.  Com.  Pleas. 

Sec.  1921.     Selling    and    furnishing    intoxicating    liquors    to 
habitual  drunkards — What  constitutes  a  sale. 

By  statute  in  Ohio  it  is  provided  that  whoever  sells  intoxi- 
cating liquors  to  a  person  in  the  habit  of  getting  intoxicated 


INTOXICATING    LIQUOR.  1699 

shall  be  punished  as  is  provided  in  said  statute.  It  is  further 
provided  by  the  statute,  among  other  things,  that  whoever  buys 
for  and  furnishes  a  person  who  is  in  the  habit  of  getting  intox- 
icated any  intoxicating  liquor  shall  be  punished  as  is  provided 
in  said  statute. 

You  will  observe  that  there  are  two  kinds  of  offenses  charged 
in  the  several  counts  of  the  indictment  in  this  case.  One  is  the 
selling  of  intoxicating  liquor  to  a  person  in  the  habit  of  getting 
intoxicated,  and  the  other  is  that  of  furnishing  intoxicating 
liquor  to  a  person  in  the  habit  of  getting  intoxicated. 

To  constitute  a  sale  a  person  procuring  liquor  must  have 
paid  for  the  same  or  agreed  to  pay  for  the  liquor.  As  matter 
of  law,  the  supplying  of  intoxicating  liquor  to  a  person  in  the 
habit  of  getting  intoxicated,  to  be  drunk  by  him,  is  the  furnishing 
of  liquor  within  the  meaning  of  our  statute,  although  it  may 
have  been  purchased  by  another  and  supplied  by  the  seller  to  a 
person  in  the  habit  of  getting  intoxicated  in  pursuance  of  such 
purchase.1 

If  a  person  in  the  habit  of  getting  intoxicated  should  go  into 
a  saloon  with  another  person,  and  such  other  person  should 
buy  from  the  saloonkeeper  intoxicating  liquor  for  himself  and 
such  habitual  drunkard,  to  be  drunk  by  them  there  before  Hie 
saloonkeeper,  such  act  would  be  a  furnishing  by  the  saloon- 
keeper to  such  habitual  drunkard,  although  such  third  person 
paid  for  the  intoxicating  liquor.2 

i  See  25  0.  S.  381. 

-  Nye,  J.,  in  State  v.  Kelley,  Lorain  Co.  Com.  Pleas. 

Sec.  1922.     Same,  continued — Intoxication  defined. 

"A  person  may  be  said  to  be  intoxicated  when  he  is  so  much 
under  the  influence  of  intoxicating  liquor  thai  lie  is  unfitted 
and  disqualified  from  attending  to  and  performing  the  usual 
duties  and  business  of  life,  [ntoxicating  Liquor  affects  different 
individuals  in  different   ways.     One  individual   it   renders  dull 

and    stupid,    so    thai    while    he    may    possess    the    powers   of   loco- 
motion  his  intellect  is  so  stupefied  that  he  is   wholly  incapable 


1700  INSTRUCTIONS  TO  JURY. 

of  attending  to  any  matter  of  business;  another  is  rendered 
excited  and  noisy,  and  for  a  time  positively  insane,  although 
he  may  be  physically  stronger  and  more  active  than  when  sober. 
In  this  instance  the  effect  is  upon  the  mind,  disqualifying  the 
man  intellectually  from  being  fit  to  be  entrusted  with  the  per- 
formance of  any  important  business. 

''On  the  other  hand,  another  person  will  exhibit  intoxication 
by  losing  all  control  over  his  muscular  action,  so  that  he  will 
be  unable  to  walk  or  move,  while  his  mind  may  be  tolerably  clear 
and  capable  of  comprehending  a  matter  of  business.  Still  the 
man  is  physically  disqualified  by  the  intoxication  from  attending 
to  his  ordinary  business.  There  are  other  persons  who  are 
mentally  and  physically  able  to  drink  large  amounts  of  intoxi- 
cating liquors  without  losing  their  mental  ability,  or  all  control 
over  their  muscular  action ;  but  yet  the  effort  to  maintain  this 
self-control  is  so  great  that  they  are  wholly  incapable  of  attending 
to  any  business,  or  performing  any  duty  resting  upon  them  as 
men  and  members  of  society.  There  are  degrees  of  intoxication. 
In  order  to  be  intoxicated  it  is  not  necessary  that  the  person 
should  be  so  drunk  as  to  be  wholly  without  the  ability  to  think  or 
move ;  it  is  enough  if  he  is  so  far  affected  as  to  render  him  unfit 
and  disqualified  for  the  performance  of  ordinary  callings — so 
affected  that  it  would  be  unsafe  to  trust  him  with  the  driving 
of  a  team,  the  care  of  a  mill,  the  making  of  a  contract,  or  the 
sale  of  property,  with  the  steering  of  a  steamboat,  with  the 
prescribing  as  a  physician,  or  the  giving  of  advice  as  a  lawyer. 
A  person  so  affected  by  intoxicating  liquors  is  truly  in  a  state 
of  intoxication  and  can  truly  be  said  to  be  intoxicated."1 
1  Nye,  J.,  in  State  v.  Kelley,  Lorain  Co.  Com.  Pleas. 

Sec.  1923.     Same  continued — Habitual  drunkard  denned. 

This  word  implies  more  than  a  single  act  of  intoxication — 
more  than  an  occasional  act  of  intoxication.  It  implies  a 
series  of  acts ;  acts  of  intoxication  so  often  repeated  that  it  may 
be  reasonably  expected  that  the  individual  will  become  intoxi- 
cated whenever  he  can  obtain  the  means  of  so  doing.     When  a 


INTOXICATING   LIQUOR.  1701 

person  has  acquired  such  a  taste  for  intoxicating  liquors,  and 
has  so  far  lost  the  control  of  his  will  that  he  will  usually  drink 
to  excess  whenever  he  can  obtain  it,  he  has  emphatically 
acquired  the  habit  of  getting  intoxicated.  Nor  need  the  acts  be 
repeated  in  rapid  succession ;  it  is  enough  to  constitute  the  habit 
if  the  person  gets  intoxicated  whenever  the  opportunity  offers, 
although  these  opportunities  may  be  at  considerable  intervals  in 
lapse  of  time.  The  habit  is  still  formed,  the  individual  becomes 
intoxicated  whenever  the  means  are  at  his  command.1 
J  Nye,  J.,   in  State  v.  Kelley,  Lorain  Co.  Com.  Pieas. 

Sec.  1924.     Sale  of  intoxicating  liquors  within  two  miles  of 
agricultural  fair. 

Your  attention  is  directed  to  the  material  things  which  it  is 
necessary  for  the  state  to  make  out  to  entitle  it  to  the  verdict  of 
guilty  as  charged  in  the  indictment.  First:  That  the  sale  of 
intoxicating  liquors  was  made  by  the  defendant  to  C.  W.. 
Second :  That  said  sale  of  intoxicating  liquors  was  made  within 

two  miles  of  the  place  where  an  agricultural  fair  of  the  

County  Agricultural  Association  was  being  held.     Third :  That 

said  offense  was  committed  in  the  County  of  ,  and  State 

of  Ohio.     Fourth :  That  said  offense  was  committed  on  or  about 

the day  of ,  19 — .    If  you  should  find  from  the  evidence 

that  said  offense  was  committed  on  or  about  that  time,  near  to 
that  time,  that  would  be  sufficient  so  far  as  the  date  is  concerned, 
provided  said  offense  was  committed  during  the  time  that  the 

agricultural  fair  of  the  County  Agricultural  Association 

was  being  held.    The  state  must  establish  each  of  the  foregoing 
propositions  by  evidence  that  satisfies  your  minds  of  their  truth 
beyond  a  reasonable  doubt.1 
i  Nye,  J.,  in  State  v.  Hunter,  Lorain  Co.  Com.  Pleas. 

Sec.  1925.     Same,  continued — What  constitutes  a  sale. 

You  are  now  instructed  upon  each  of  the  material  things 
which  it  is  necessary  tor  the  state  to  make  out  before  it  is 
entitled  to  a  verdict  of  guilty  at  your  hands. 


1702  INSTRUCTIONS  TO  JURY. 

To  constitute  a  sale  the  person  procuring  the  intoxicating 
liquors  must  have  paid  for  the  same,  or  agreed  to  pay  for  the 
liquor  at  the  time  he  purchased  it    If  you  find  from  the  evidence 

that  the  offense  was  committed  on  the  evening  of  the day  of 

1  19 — s  that  would  be  sufficient  so  far  as  the  date  is  con- 
cerned, to  warrant  a  conviction  upon  a  count  which  charges  an 

offense  to  have  been  committed  on  the  day  of  ,  19 — , 

providing  said  offense  was  actually  committed  during  the  time 

the  agricultural  fair  of  the County  Agricultural  Association 

was  being  held.  This  becomes  a  question  of  fact  for  you  to 
determine  from  all  the  evidence  in  the  case  whether  the  said 
defendant  did  sell  intoxicating  liquors  to  the  said  C.  W.  on  the 

night  of  the day  of ,  19 — -1 

i  Nye,  J.,  in  State  v.  Hunter,  Lorain  Co.  Com.  Pleas. 

Sec.  1926.     What  constitutes  sale  within  two  miles  of  agricul- 
tural fair. 

If  you  find  from  the  evidence  given  you  m  this  case  that  the 
County   Agricultural    Society   held   an    agricultural   fair 


in  County,  which  opened  its  exhibits  to  visitors  on  the 

morning  of  day  of  ,  19—,  and  continued  open  from 

day  to  day,  every  day,  until  the  afternoon  or  evening  of  , 

19 — t  except  that  its  grounds  were  closed  to  the  public  during 
the  nights,  and  you  further  find  that  substantially  all  the 
exhibits  of  said  agricultural  fair  remained  on  the  grounds  of 

said  County   Agricultural   Society,   both   day  and  night 

during  said  period,  you  are  instructed  that  the  place  where  the 
said  agricultural  fair  was  thus  held  was,  in  contemplation  of  the 
statutes,  a  place  where  agricultural  fair  was  being  held,  during 
all  the  time  both  day  and  night,  from  the  time  that  said  agri- 
cultural fair  was  thus  opened  for  its  exhibition  to  the  public, 

from  the  morning  of ,  19—,  or  afternoon  or  evening  ■ , 

19 — ;  and  the  sale  of  intoxicating  liquors  within  two  miles 
of  the  place  where  the  agricultural  fair  was  being  held  would 
be  a  violation  of  the  statute.  It  would,  therefore,  be  unlawful 
to  sell  intoxicating  liquors  within  two  miles  of  the  place  where 


INTOXICATING    LIQUOR.  1703 

the  agricultural  fair  was  thus  being  held,  from  the  time  of  its 
opening  to  its  close. 

It  then  becomes  a  question  of  fact  for  you  to  determine  from 
all  the  evidence  in  the  ease,  if  you  find  that  intoxicating  liquors 
were  sold  by  the  defendant  to  said  C.  W.  as  claimed  by  the  state, 
whether  said  sales,  or  either  of  them,  were  made  during  the  time 
that  said  agricultrual  fair  was  being  held.1 
i  Aye.  J.,  in  State  v.  Hunter,  Lorain  Co.  Com.  Pleas. 

Sec.  1927.     What  is  intoxicating  liquor. 

Upon  the  subject  of  intoxicating  liquors  you  are  instructed 
that  whisky  is  an  intoxicating  liquor.  If,  therefore,  you  find, 
from  the  evidence  which  has  been  submitted  to  you  in  this  case, 
that  the  defendant  sold  whisky  to  the  said  C.  W.,  the  sale  of 
whisky  would  be  the  sale  of  intoxicating  liquor.1 
i  Nye,  J.,  in  State  r.  Hunter,  Lorain  Co.  Com.  Pleas. 

Sec.  1928.    What  is  an  agricultural  fair. 

It   becomes  important   for   the   jury   to   determine   from   the 

Evidence    whether    an    agricultural    fair    of    the    County 

Agricultural  Society  was  being  held  at  the  time  the  alleged 
sales,  or  either  of  them,  are  said  to  have  been  made.  You  are 
instructed  that,  "A  place  where  industrial  products  of  the 
people  in  agriculture,  manufacture  and  the  arts  are  received 
and  placed  on  exhibition  for  the  purpose  of  displaying  them 
and  awarding  prizes  as  the  reward  for  excellence,  is  an  agri- 
cultural fair."  And  one  who  sells  intoxicating  Liquors  within 
two  miles  of  the  place  where  the  agricultural  fair  is  being  held, 
is  liable  under  the  state  statute.1 
iNye,  -T..  in  Stale  v.  Bunter,  Lorain  Co.  Com.  Pleas. 

Sec.  1929.     Sales  by  agent  or  barkeeper. 

If  you  find  from  the  evidence  which  has  been  given  to  you  in 
this  case,  that  there  was  a  sale  of  intoxicating  liquors  to  said  C. 
W.   bv  the   agent  of  the   defendant,   acting    in    the    line   <>!*   his 


1704  INSTRUCTIONS  TO  JURY. 

duties,  the  defendant  would  be  liable  for  the  acts  of  his  agent, 
thus  acting  in  the  line  of  the  agent's  duty  and  authority.  If 
you  find  from  the  evidence  that  the  defendant  placed  someone, 
even  temporarily,  behind  the  bar  to  wait  on  customers,  and 
make  sales,  such  person  so  placed  there  would  be  the  agent  of  the 
defendant  in  waiting  on  customers  and  making  such  sales,  while 
thus  in  the  employ  of  the  defendant.  If  you  find  from  the 
evidence  that  there  was  a  person  behind  the  bar  in  defendant's 
place  of  business  in  the  act  of  selling  articles  there  kept  for  sale, 
with  the  knowledge  of  the  defendant,  that  act  may  be  considered 
by  you  in  determining  whether  said  person  was  agent  of  the 
defendant,  and  acting  with  the  authority  of  the  defendant.  And 
if  you  find  from  the  evidence  that  someone  went  into  the 
defendant's  place  of  business  and  went  behind  the  bar  and  sold 
intoxicating  liquors  without  the  knowledge  or  consent  of  the 
defendant,  defendant  will  not  be  liable  for  any  sales  made  by 
such  unauthorized  person.  The  defendant  had  a  right  to  go 
into  his  saloon  at  any  time  during  the  agricultural  fair,  and 
there  would  be  no  liability  therefor.  If  the  defendant  made  no 
sales  of  intoxicating  liquors,  either  by  himself  or  an  agent 
authorized  in  the  matter,  he  could  not  be  legally  convicted.1 
i  Nye,  J.,  in  State  v.  Hunter,  Lorain  Co.  Com.  Pleas. 


CHAPTER   CXI. 
LANDLORD    AND    TENANT. 

SEC.  SEC. 

1930.  Duty    of    landlord    to    repair       1931.  Same      continued — Defects 
walks,    remaining    under  known  to  plaintiff, 

his  control,   and   part  of       1932.  Whether     premises     rendered 
common  walk.  unfit    for    occupancy    on 

account   of   fire,   so   that 
rent  may  not  be  collected. 

Sec.  1930.     Duty    of    landlord    to    repair    walks— Remaining 
under  his  control,  and  part  of  common  walk. 

It  is  the  duty  of  a  landlord  who  lets  premises  to  which  there  is 
a  common  walk,  which  remains  under  his  own  control  and  is 
not  let  to  any  of  the  tenants,  to  use  reasonable  care  and  diligence 
in  keeping  that  walk  in  repair;  and  if,  by  his  failure  to  use 
that  sort  of  care  and  diligence,  the  walk  gets  out  of  repair,  and 
a  party  is  injured  by  reason  thereof,  without  having  been  guilty 
of  any  negligence  which  contributed  to  the  injury,  then  he  or 
she  would  be  entitled  to  recover. 

If  the  walk  upon  which  the  plaintiff  is  alleged  to  have  been 
injured  was  a  common  way,  and  was  under  defendant's  control, 
it  was  his  duty  to  see  to  its  condition,  and  the  fact,  if  such  were 
the  fact,  that  the  plaintiff  did  not  inform  defendant  of  its 
unsafe  condition  does  not  necessarily  preclude  plaintiff's 
recovery. 

The  renting  or  leasing  of  a  house  will  include  everything 
belonging  to  it,  or  which  is  reasonably  necessary  to  its  enjoy- 
ment. It  will  also  include  all  usual  and  accustomed  ways  to  the 
house.  Whenever  a  house  is  rented  or  leased,  all  the  means  to 
which  the  lessor  is  entitled  to  attain  the  use  and  enjoyment  of 
the  house  pass  by  the  renting  or  leasing  to  the  tenant.  These 
are  called  appurtenances  and  pass  to  the  tenant  by  the  renting 
or  leasing  of  a  house  without  being  made.    If  you  find  from  the 

1705 


1706  INSTRUCTIONS  TO  JURY. 

testimony  and  from  all  the  circumstances  of  the  case  that  so 
much  of  the  yard  and  the  walk  therein,  in  the  rear  on  No. — 

Street  as  would  be  included  within  the  lines  of  the  house 

so  numbered  prolonged,  are  reasonably  necessary  to  the  enjoy- 
ment of  that  house,  then  so  much  of  the  yard  in  the  rear  of 

No. Street,  and  the  walk  therein,  included  between  the 

lines  of  the  house  prolonged,  were  included  in  the  renting  of 
the  house  to  the  plaintiff,  and  were  under  her  care  and  control, 
and  she  can  not  recover  in  this  action,  although  other  tenants  of 

the  blocks  of  buildings  of  which  said  No. Street  is  one 

have  a  right  of  way  over  the  walk. 

The  fact  that  other  tenants  of  the  row  had  a  right  of  way 
in  the  walk  extending  through  the  yard  of  each  of  the  others 
does  not  necessarily  show  that  the  custody  and  control  of  such 
part  is  not  in  the  tenant  through  whose  yard  it  passes.1 

i  From  Emery  r.  Mary  A.  Dee,  supreme  court.  27  W.  L.  B.  160,  Xo.  1542. 
H.  D.  IPeck,  J. 

Sec.  1931.     Same,    continued — Defects    in    walk    known    to 
plaintiff. 

The  plaintiff  admits  that  she  knew  of  the  defects  in  the  walk. 
Her  knowledge  of  the  defects  is  a  prominent  fact  in  the  case  to 
be  taken  into  consideration  with  all  the  other  facts  and  circum- 
stances in  determining  the  question  whether  her  own  negligence 
contributed  to  the  accident  by  which  she  claims  she  was  injured. 
And  if  you  should  find  that  by  her  own  carelessness  she  did 
contribute  to  the  accident,  she  can  not  recover. 

The  law  does  not  measure  degrees  of  carelessness,  and  if  you 
find  that  the  plaintiff  in  any  material  degree  contributed  by 
her  carelessness  to  the  injury,  she  can  not  recover. 

Knowing  the  defective  condition  of  the  walk  when  she  rented 
the  premises,  plaintiff  was  therefore  bound  to  use  such  increased 
care  in  using  the  walk  as  its  defective  condition  required,  and 
she  can  not  excuse  herself  for  the  want  of  such  care  by  the 
plea  that  she  was  not  responsible  for  the  defects  themselves.1 
i  From  Emery  v.  Dee,  supreme  court,  No.   1543. 


LANDLORD  AND  TENANT.  1707 

Sec.  1932.  Whether  premises  rendered  unfit  for  occupancy 
on  account  of  fire — So  that  rent  may  not  be 
collected. 

The  question,  then,  is  whether  in  this  case  there  was  such  a 
destruction  or  such  an  injury  to  the  premises  by  the  fire  and 
water — by  what  occurred  at  that  time  resulting  from  the  fire — 
as  that  it  became  unfit  for  occupancy;  because,  to  justify  a 
lessee  in  abandoning  premises,  or  insisting  upon  the  termination 
of  a  lease,  the  injury  or  destruction  must  go  to  the  extent  of 
rendering  the  premises  unfit  for  occupancy.  It  must  amount  to 
such  destruction  as  that  the  premises  are  unfit  for  occupancy; 
not  that  there  must  be  an  absolute  wiping  out  of  the  building — 
its  absolute  destruction  from  the  face  of  the  earth — but  it  must 
be  such  an  injury,  or  the  injury  must  go  so  far  toward  total 
destruction,  as  that  it  is  no  longer  suitable  to  be  used  for  com- 
mercial purposes,  or  for  such  purposes  as  it  was  fairly  and 
reasonably  designed  to  accommodate  in  its  original  construction. 
Mere  temporary  inconvenience  occasioned  by  a  fire  would  not 
justify  or  authorize  a  tenant  to  vacate  premises,  nor  would  it 
have  the  effect  to  terminate  the  lease.  Mere  inconvenience,  the 
mere  cessation  or  interruption  to  business  for  a  day  or  two, 
would  not  have  that  effect.  It  must  go  to  the  extent  of  rendering 
the  premises  untenantable,  so  that  the  situation  requires  a 
removal  elsewhere. 

Now,  it  is  hardly  within  the  province  of  the  court  to  indicate, 
I  think,  just  what  state  of  facts  would  justify  a  removal,  or 
would  justify  the  terminating  of  a  lease.  I  only  propose,  in  a 
general  way,  to  give  you  general  rules  for  your  guidance.  As 
I  say,  mere  temporary  inconvenience,  a  mere  wetting  of  the  walls 
by  itself,  standing  alone,  as  a  circumstance,  the  wetting  of  the 
floors,  the  mere  putting  out  of  the  fire  by  flooding  a  cellar,  if  it 
could  be  removed  within  a  short  time,  if  the  effects  could  be  over- 
come within  ;i  short  tim< — any  one  of  these  things  alone  would 
not  constitute  such  destruction,  or  such  an  injury  to  the  prem- 
ises a.s  would  justify  a  lesser  iii  terminating  ;i  lease.  Those  are 
all  circumstances  to  be  considered,  however,  together  with  other 


170&  INSTRUCTIONS  TO  JUBY. 

things,  with  a  view  of  determining  whether  the  building,  as  a 

structure,  has  undergone  such  injury  and  such  destruction  as 

a  whole  that  it  is  no  longer  a  structure  suitable  for  the  business 

for  which  it  was  designed.     If  this  fire  was  of  such  extent  and 

so  destroyed  these  premises  as  a  whole    (and  I  now  refer  in 

what  I  say  to  the  premises  as  a  whole),  if  they  were  injured 

to  such  extent  that  there  was  a  burning  away  of  the  roof  or 

of  the  windows,  that  is  spoken  of  as  to  make  these  premises  as 

an  entirety  unfit  for  occupancy,  unfit  to  be  used  in  a  commercial 

business,  then  it  was  the  right  of     the  lessees  to  vacate  the 

premises  and  terminate  this  lease;  it  was  their  right  to  insist 

upon  its  being  terminated,  if  such  a  condition  of  things  occurred. 

If  there  was  such  a  destruction  or  such  injury,  if  it  went  to  the 

extent  that  the  building  as  a  whole  was  untenantable,  unfit  for 

occupancy,  then  they  would  have  the  right,  we  think,  under  the 

statute,  under  this  lease,  to  insist  upon  its  termination.1 

i  Carlos  M.  Stone.  J.,  in  Weil,  Joseph  &  Co.  v.  Gilchrist.  Judgment 
affirmed,  It.  S.,  sec.  4113.  The  injury  contemplated  by  the  statute 
is  a  total  destruction.  Suydam  v.  Jackson,  54  N.  Y.  450;  Stitphen 
v.  Seebass,  12  Daly,  139  5  Hillard  v.  Coalles,  41  0.  S.  662. 


CHAPTER   CXII. 
LARCENY. 


SEC. 

1933.  Larceny  defined. 

1934.  Grand  larceny — Essential  and 

material  allegations  to 
be  proved. 

1935.  What     constitutes     a     taking 

and   carrying   away. 

1936.  Return   of   property   upon    be- 

ing discovered  does  not 
change  offense. 

1937.  What    constitutes    larceny    of 

property  where  owner 
voluntarily  parts  with  its 
possession. 

1938.  Grand   larceny   committed   by 

destruction  of  property 
— Intent — How   proved. 

1939.  Larceny  of  lost  money — What 

essential  to  constitute 
larceny  by  finder. 

1940.  Value    of    property    must    be 

proved. 


SEC. 

1941.  Larceny  of  money  found  by 
undertaker  on  dead  body 
drowned  in  Mood. 

1.  The    indictment,    pica   and 

burden. 

2.  Presumption    of    innocence 

— Reasonable    doubt,  etc. 

3.  The  statute. 

4.  To  steal,  defined. 

5.  Anything  of  value,  defined. 

6.  Ownership   of  property   in 

heirs. 

7.  Duty  of  defendant  as  cor- 

oner    as     to     body     and 
mortey  found  thereon. 

8.  If  defendant    took    money 

feloniously    but    a    short 
time. 

9.  Intent  to  steal. 

1942.  Larceny — Short  charge  in. 


Sec.  1933.     Larceny  defined. 

The  statute  under  which  this  indictment  is  brought  provides 
that  "whoever  steals  anything  of  value  is  guilty  of  larceny,1  and 
shall  be  punished  as  is  provided  in  the  statute."  It  may  aid 
you  in  arriving  at  a  just  and  proper  verdict  by  defining  some 
of  the  terms  involved  in  the  crime  cbarged  in  this  indictment. 

To  steal  is  to  take  and  carry  away  feloniously  personal  goods 
of  another,2  to  take  without  right  or  leave.  Larceny  is  the 
wrongful  taking  and  carrying  away  by  any  person  of  the  mere 
personal  <n>ods  of  another  from  any  place,  with  a  felonious 
intent  to  convert  them  to  his  (the  taker's)  own  use,  and  make 
them  his  own  property  without  the  consent  of  the  other.    Again, 

1709 


1710  INSTRUCTIONS  TO  JURY. 

larceny  is  defined  to  be  the  wrongful  or  fraudulent  taking  and 
carrying  away  without  color  of  right  the  personal  goods  of 
another,  from  any  place,  with  the  wrongful  intent  to  convert 
them  to  his  (the  taker's)  own  use,  and  make  them  his  property 
without  the  consent  of  the  owner. 

Again,  I  say  to  you,  larceny  is  the  taking  and  removing  by 
the  trespass  of  personal  property,  which  the  trespasser  knows 
to  belong  to  another,  with  the  felonious  intent  to  deprive  him 
of  his  ownership  therein.3 

i  Code,  sec.  12447. 

2  The  word  "steal"  implies  a  carrying  away.     State  v.  Mann,  25  0.  S.  668. 

s  Nye,   J.,    in    State   v.    Michke,    Lorain    Co.    Com.    Pleas.     For    definition 

see  2  Bish.  Cr.  Law,  sec.  758;   Clark's  Cr.  Law,  241;   Hawley's  Cr. 

Law,  188. 

Sec.  1934.     Grand  larceny — Essential  or  material  allegations 
to  be  proved. 

(Precede  by  statement  of  allegations  of  the  indictment.) 
Material  allegations  of  the  indictment  and  the  things  which  it 
is  necessary  for  the  state  to  prove  before  it  would  be  entitled  to 
a  conviction  at  your  hands  are  as  follows:  First.  That  the 
personal  property  named  in  the  indictment  or  some  part  of  it 
was  stolen.  Second.  That  the  defendant  here  on  trial  committed 
the  offense.  Third.  That  the  said  property  was  the  property  of 
E.  M.     Fourth.    That  said  offense  was  committed  within  the 

County  of  ,  State  of  Ohio.     Fifth.    That  the  offense  was 

committed  on  or  about  the day  of ,  19 — . 

Sec.  1935.     What  constitutes  a  taking  and  carrying  away. 

In  order  to  constitute  the  offense  of  larceny  there  must  be  an 
actual  taking  or  severance  of  the  thing  from  the  possession  of 
the  owner,  for,  as  every  larceny  includes  a  trespass,  if  the  party 
be  not  guilty  of  a  trespass  in  taking  the  goods,  he  can  not  be 
guilty  of  a  felony  in  carrying  them  away.1 

There  must  also  be  a  carrying  away  of  the  goods  taken.  When 
this  is  done  the  offense  is  complete,  the  crime  is  committed,  and 


LARCENY.  1711 

can  not  be  purged  by  a  return  of  the  goods,  though  the  possession 

be  retained  but  for  a  moment. - 

The  felony  lies  in  the  very  first  act  of  removing  the  property ; 

therefore  the  least  removing  of  the  entire  thing  taken,  with  an 

intent  to  steal  it,  if  the  thief  thereby  for  an  instant  obtain  the 

entire  possession  of  it,  it  is  an  asportation,  though  the  property 

be  not  removed  from  the  premises  of  the  owner,  nor  retained 

in  the  possession  of  the  thief.3 

i  Eckels  r.  State,  20  O.  S.  512;  Roscoe's  Crim.  Ev.  587;  2  Russ.  on  Crimea,  5. 

2  Id.     3    Greenleaf's    Ev.,    sec.    156;    2    Russ.    on    Crimes    6. 

a  Eckels  v.  State,  20  0.  S.  512,  513.     The  thing  need  not  be  taken  into  the 

manual  possession  of  the  thief.     Lem.   Doss   v.  State,  21  Tex.  App. 

505. 

Sec.  1936.     Return  of  property  upon  being  discovered  does  not 
change  offense. 

The  jury  are  instructed  that  if  the  defendant  had  actually 
taken  the  money  into  his  hand,  and  lifted  it  from  the  place 
where  the  owner  had  placed  it,  so  as  to  entirely  sever  it,  he  would 
be  guilty  of  larceny,  though  he  may  have  dropped  it  into  the 
place  in  which  it  was  lying,  upon  being  discovered,  and  never 
have  had  it  out  of  the  drawer.1 
i  Eckels  t7.  State.  20  O.  S.  508. 

Sec.  1937.     What  constitutes  larceny  of  property  where  owner 
voluntarily  parts  with  its  possession. 

You  are  instructed  that  to  constitute  larceny  in  a  case  where 
the  owner  voluntarily  parts  with  the  possession  of  his  property, 
two  other  conditions  are  essential.  1.  The  owner,  a1  the  time 
of  parting  with  the  possession,  must  expect  and  intend  that  the 
thing  delivered  will  be  returned  to  him  or  disposed  of  under 
his  direction  for  his  benefit.  2.  The  person  taking  the  posses- 
sion must,  at  the  time,  intend  to  deprive  the  owner  of  his  prop- 
erty in  the  thin?  delivered.  Rut  where  the  owner  intends  to 
transfer,  nol  the  possession  merely,  hut  also  the  title  to  the 
property,  although  induced  thereto  by  the  fraud  and  fraudulent 
pretenses  of  the  taker,  the  taking  and  carrying  away  do  not 


1712  INSTRUCTIONS  TO  JURY. 

constitute  a  larceny.  In  such  case  the  title  vests  in  the  fraudu- 
lent taker,  and  he  can  not  be  convicted  of  the  crime  of  larceny 
for  the  simple  reason  that,  at  the  time  of  the  transaction,  he 
did  not  take  and  carry  away  the  goods  of  another  person,  but 
the  goods  of  himself.1 

i  From  Keliogg  v.  State,  26  O.  S.  15,  18,  1!).  See  State  v.  Coombs,  55  Me. 
477;  Beatty  v.  State,  61  Miss.  18;  Snapp  v.  Com.,  82  Ky.  173. 
As  to  manner  of  taking  see  Clark's  Cr.  Law  248. 

Sec.  1938.     Grand  larceny  committed  by  destruction  of  prop- 
erty— Intent — How  proved. 

The  state  claims  that  the  defendant  here  on  trial  took  the 
property  named  in  the  indictment  and  carried  it  and  conveyed 
it  away  and  destroyed  it  by  burning  it  up. 

The  state  further  claims  that  defendants  took  said  property 
with  intent  to  convert  it  to  their  own  use  and  then  destroy  it, 
for  the  purpose  of  depriving  the  owner  of  said  property. 

On  the  other  hand,  the  defendants  deny  that  they  took  the 
property  with  intent  to  convert  it  to  their  own  use,  and  they 
further  deny  that  they  took  the  property  at  all,  and  they  deny 
that  they  burned  or  destroyed  the  property,  and  deny  that  they 
had  anything  whatever  to  do  with  it. 

Now,  gentlemen,  if  you  find  from  the  evidence  given  you  in 
this  case  that  the  defendants  took  the  property  named  in  the 
indictment,  or  any  portion  thereof,  it  will  be  important  for  you 
to  determine  with  what  intent  they  took  said  property. 

Intent  can  rarely  be  proved  by  the  direct  evidence  of  the 
condition  of  the  person's  mind,  hence  the  presence  or  absence 
of  intent  must  be  gathered  by  considering  all  the  facts  and  cir- 
cumstances, to  determine  whether  the  acts  were  accompanied  by 
a  criminal  purpose  or  an  honest  purpose. 

If  you  find  from  the  evidence  that  the  defendants  here  on 
trial  feloniously  took  the  property  named  in  the  indictment, 
with  intent  to  convert  it  to  their  own  use,  without  the  consent 
of  the  owner  thereof,  then  I  say  to  you  that  such  an  act  would 
constitute  a  larceny  of  the  property  so  taken. 


LABCENY.  1713 

Again,  I  say  to  you  if  you  find  from  the  evidence  given  you 
in  this  case  that  the  defendants  here  on  trial  feloniously  took 
said  property  with  intent  to  destroy  it,  and  thus  deprive  the 
owner  of  it  without  the  owner's  consent,  such  act  would  con- 
stitute larceny  of  said  property. 

If  you  find  from  the  evidence  that  has  been  given  you  on 
the  trial  of  this  case  that  the  defendants  here  on  trial  took  said 
property,  it  will  be  important  for  you  to  determine  with  what 
intent  they  took  it.  If  you  find  from  the  evidence  that  the 
defendants  took  said  property  without  the  consent  of  the  owner 
and  failed  to  return  it,  that  fact  may  be  considered  in  deter- 
mining with  what  intent  the  defendants  took  the  property  at 
the  time  they  took  it. 

Again,  if  you  find  from  the  evidence  that  the  defendants 
took  said  property  without  the  consent  of  the  owner  thereof, 
and  soon  thereafter  destroyed  it  by  burning  it  up,  that  fact 
may  be  considered  by  you  in  determining  with  what  intent  they 
took  said  property.1 

i  Nye,  J.,  in  State  v.  Mischke,  Lorain  Co.  Com.  Pleas. 

Sec.  1939.     Larceny — Of  lost  money — What  essential  to  con- 
stitute larceny  by  finder. 

' '  Though  the  money  was  actually  lost  and  the  defendant  found 
it,  and  at  the  time  of  finding  supposed  it  to  be  lost,  and  appro- 
priated it  with  intent  to  take  entire  dominion  over  it,  yet  really 
believing  that  the  owner  could  not  be  found,  that  was  not 
larceny  and  he  can  not  be  convicted.  The  intent  to  steal  must 
have  existed  at  the  time  of  the  taking.  It  is  not  enough  that 
he  had  the  general  means  of  discovering  the  owner  by  honest 
diligence.  He  was  not  bound  to  inquire  on  the  streets  or  at  the 
printing  offices  for  the  owner,  though  if,  at  the  time  of  the 
taking,  he  knew  he  had  reasonable  means  of  ascertaining  that 
fact,  that  might  be  taken  as  showing  a  belief  that  the  owner  of 
the  money  could  be  found.  In  order  to  convict,  it  must  be 
shown  that  the  taking  of  the  property  was  with  felonious  intent; 
that  is,  with  intent  to  steal  under  the  definition  given ;    and  it 


1714  INSTRUCTIONS  TO  JURY. 

is  not  sufficient  that  subsequently  after  finding  the  money  it 
was  converted  to  his  own  use  with  felonious  intent.  The  intent 
must  have  existed  at  the  time  of  the  finding."1 

If  a  person  finds  goods  that  have  actually  been  lost,  and 
believing  at  the  time,  or  having  good  reason  to  believe,  that 
the  owner  can  be  found,  but  takes  possession  with  intent  to 
appropriate  the  same  to  his  own  use,  he  is  guilty  of  larceny.2 

i  From  Brooks  v.  The  State,  35  0.  S.  46.  For  another  charge  and  author- 
ities, see  Thompson's  Trials,  sec.  2202. 

2  Baker  v.  State,  29  O.  S.  184;  Regina  w.  Thurborn,  1  Dennison  C.  C. 
387 ;   Regina  v.  Wood,  3  Cox  C.  C.  453 ;  Clark's  Cr.  Law  255. 

Sec.  1940.     Value  of  property  must  be  proved. 

Before  the  defendant  can  be  convicted,  you  must  be  satisfied 
that  the  property  claimed  to  have  been  stolen  is  of  some  value. 
If  the  state  has  failed  to  affirmatively  prove  that  the  property 
was  of  some  value,  then  it  is  the  duty  of  the  jury  to  acquit  the 
defendant.  This  fact  must  be  proved  as  other  facts.1 
i  State  v.  Krieger,  G8  Mo.  98. 

Sec.  1941.     Larceny  of  money  found  by  undertaker  on  dead 
body  drowned  in  flood. 

1.  The  indictment — Plea  and  burden.  Now,  gentlemen  of  the 
jury,  the  indictment   charges  that  the  defendant,    0.,  did  on 

,  in  Franklin  county,   Ohio,  unlawfully  steal,  take  and 

carry  away  dollars  in  money  the  personal  property  of 

S.  S.  et  al.,  heirs  at  law  of  S.  S.,  deceased. 

The  defendant  pleads  not  guilty. 

Gentlemen,  there  is  but  one  question  of  fact  for  you  to  decide ; 
that  is,  whether  defendant  at  the  time  he  took  the  money  in- 
tended to  unlawfully  steal  the' same. 

The  burden  is  on  the  state  to  prove  the  defendant  guilty 
beyond  a  reasonable  doubt. 

2.  Presumption  of  innocence — Reasonable  doubt,  etc.  The 
law  presumes  that  he  is  innocent,  notwithstanding  the  indict- 
ment preferred  against  him. 


LARCENY. 


1715 


A  reasonable  doubt  is  such  a  state,  of  mind  on  the  part  of 
jurors  after  having  fairly  and  impartially  weighed  and  con- 
sidered all  the  evidence  in  the  case,  that  you  may  have  an 
honest  and  substantial  feeling  of  uncertainty  or  doubt  of  the 
guilt  of  the  accused,  and  which  rests  upon  some  reasonable 
ground  disclosed  by  the  evidence. 

If  there  is  nothing  in  the  evidence  that  fairly  and  reasonably 
causes  you  to  have  such  reasonable  doubt,  but,  on  the  contrary, 
you  have  an  abiding  conviction  of  the  guilt  of  the  defendant  of 
the  crime  charged,  your  duty  is  to  find  him  guilty. 

But  if  you  have  a  reasonable  doubt  of  defendant's  guilt,  your 
duty  is  to  acquit  him. 

The  jury  being  the  sole  judge  of  the  facts  to  be  deduced  and 
found  from  the  evidence,  you  must  also  decide  what  credit  is 
to  be  given  to  any  and  all  witnesses. 

In  considering  the  weight  and  credit  to  be  given  witnesses, 
you  will  consider  their  testimony  in  the  light  of  all  the  facts 
and  circumstances  developed  and  apply  such  tests  as  in  your 
judgment  you  deem  proper.  You  may  consider  whether  any 
witness  has  or  has  not  been  influenced  or  biased  by  any  interest 
in  the  trial ;  the  demeanor  while  on  the  witness  stand,  whether 
corroborated  or  contradicted. 

3.  The  statute.  Section  12,447,  under  which  this  indictment 
is  framed,  provides  that:  "Whoever  steals  anything  of  value 
is  guilty  of  larceny." 

4.  To  steal,  defined.  To  steal  anything  is  a  criminal  taking, 
obtaining,  or  converting  of  the  personal  property  of  another 
with  intent  to  refraud  or  deprive  the  owner  permanently  of  the 
use  of  it.  [Commonwealth  v.  Eelley,  184  Mass.  320.]  It  is  to 
take  the  property  of  another  without  right  or  leave,  and  with 
intent  to  keep  wrongfully.  [46  Fla.  115;  152  Mo.  76;  164 
N.  Y.  137;   31  Wash.  245.] 

5.  Anything  of  value,  defined.  Anything  of  value,  as  used  in 
the  statute,  means  and  comprehends  money  which  is  the  sub- 
ject of  the  charge  in  this  case. 

6.  Ownership  of  property— In  the  heirs.  In  an  indictmenl 
for  larceny  the  ownership  of  the  property  must  be  alleged  and 


1716  INSTRUCTIONS  TO  JURY. 

be  proved  to  be  in  some  person,  although  the  actual  condition 
of  the  legal  title  is  immaterial  to  the  person  charged.  So  in 
this  case,  it  being  conceded  that  the  money  was  found  on  the 
body  of  a  dead  person,  Mrs.  S.,  the  court  states  to  the  jury  that 
the  possession  of  the  same  legally  belonged  to  her  heirs,  the 
persons  named  in  the  indictment,  they  having  the  right  to 
demand  and  take  possession  of  any  money  found  on  the  body 
of  their  mother.      [See  111  Ala.  29.] 

7.  Duty  of  defendant  as  coroner  as  to  body  and  money  found 
thereon.  It  is  conceded  that  the  dead  body  of  S.  S.  was  brought 
to  the  place  of  the  defendant  in  a  wagon  by  persons  other  than 
the  defendant.  The  court,  therefore,  instructs  the  jury  that  the 
defendant  having  received  the  body  under  such  circumstances, 
he  was  bound  under  the  law  to  yield  control  and  supervision 
of  the  disposition  of  the  body  as  well  as  of  any  money  found 
on  the  body  to  any  one  or  all  of  the  heirs  of  S.  S.  named  in  the 
indictment. 

The  defendant,  0.,  in  his  capacity  as  undertaker  had  no  legal 
right  to  retain  the  money  found  by  him  on  the  body  until  his 
bill  for  the  services  to  be  rendered  by  him  in  the  burial  of  the 
body  was  paid. 

If  the  jury  find  from  all  the  facts  and  circumstances  shown 
by  the  testimony,  that  at  the  time  of  finding  the  money,  that 
the  defendant,  0.,  had  reasonable  ground  to  believe,  from  the 
nature  of  the  property  found,  or  from  circumstances  under 
which  it  was  found  that  if  0.  did  not  conceal  the  fact  that  he 
found  it,  and  had  possession  of  it,  but  that  if  he  dealt  honestly 
with  it,  the  persons  to  whom  the  possession  rightfully  belonged 
would  appear  or  would  be  ascertained,  then,  if  you  find  also 
that  he  purposely  concealed  the  fact  that  he  had  found  the 
money,  and  kept  the  same  in  his  possession  for  a  short  time 
with  intent  to  convert  it  to  his  own  use,  the  defendant  would 
be  guilty  of  larceny,  provided  the  jury  further  find  from  the 
evidence  that  at  the  time  he  took  the  money  into  his  possession 
he  intended  to  convert  it  to  his  own  use. 

The  time  referred  to  as  the  time  when  the  money  came  into 
his  possession  means  and  includes  the  time  necessary  for  the 


LARCENY.  1717 

accused  to  discover  and  know   the  character  and  value  of  the 
property. 

Or  if  the  jury  find  from  all  the  evidence  that  the  defendant 
learned  or  knew  whose  body  it  was  from  which  the  money  was 
taken  at  the  time  it  was  taken,  and  that  he  knew  any  of  her 
sons  and  daughters,  and  that  he  concealed  the  fact  of  his  find- 
ing and  possession  from  them,  and  that  he  intended  to  convert 
it  to  his  own  use  at  the  time  of  taking  possession  of  the  money, 
or  as  soon  as  he  discovered  and  knew  the  character  and  value 
of  the  property,  then  the  jury  should  find  the  defendant  guilty. 

8.  If  defendant  took  money  feloniously  hut  a  short  time.  If 
the  jury  should  under  the  above  instructions  find  that  defendant 
feloniously  took  the  property  as  specifically  covered  by  the  law 
as  given  you,  and  that  he  kept  possession  of  such  money  only 
for  a  short  time,  with  the  intent  and  purpose  aforesaid,  the 
jury  are  instructed  that  in  the  event  that  such  be  your  finding, 
the  crime  of  larceny  would  be  complete,  and  that  the  giving  up 
of  the  money  to  the  officers  of  the  law  would  not  have  any  effect 
whatsoever. 

9.  Intent  to  steal.  The  intent  to  steal  is  an  essential  element 
in  this  case.  The  defendant  must  have  intended  to  steal  the 
money  at  the  time  it  came  into  his  possession  to  warrant  con- 
viction. That  is,  it  is  essential  that  he  must  have  formed  such 
intent  to  convert  the  money  to  his  own  use  at  the  time  of  taking 
it  and  after  having  had  time  to  discover  the  character  and  value 
of  the  property. 

Intent  is  a  condition  of  the  mind  which  in  many  cases  can 
be  disclosed  by  the  conduct,  declarations  and  statements  made 
by  one  acused  of  crime,  from  which  inferences  may  be  drawn. 

The  court,  therefore,  charges  the  jury  that  in  determining 
the  intent  of  the  defendant  in  this  case,  whether  or  not  lie 
intended  to  steal  the  money  found  upon  the  body  of  S.  S.  at 
the  time  it  came  into  his  possession,  you  may  consider  all  the 
evidence  touching  his  conduct  during  the  time  the  accused  had 
possession  of  the  money;  you  may  consider  any  and  all  stale 
ments  made  by  him  at  the  time  he  took  the  money,  or  at  any 


1718  INSTRUCTIONS  TO  JURY. 

and  all  times  during  which  he  had  possession  of  the  money, 
all  things  said  and  done  by  him  during  that  time,  as  disclosed 
by  the  evidence,  together  with  each  and  all  the  facts  and  cir- 
cumstances admitted  in  evidence. 

If,  under  the  evidence  in  the  case  and  by  application  of  the 
law  given  you,  the  jury  find  that  the  defendant  took  the  money 
with  intent  to  steal  it,  your  verdict  should  be  one  of  guilty, 
and  in  such  case  you  will  find  the  value  of  the  money,  and  state 
it  in  your  verdict, 

If,  upon  the  evidence  and  the  instructions  of  the  court,  you 
find  that  the  defendant  did  not  take  the  money  with  intent  to 
steal  it,  your  verdict  should  be  one  of  acquittal.1 
i  State  v.  Osman,  Franklin  County  Com.  Pleas,  Kinkead.  J. 

Sec.  1942.     Larceny — Short  charge  in. 

Gentlemen  of  the  jury:  Having  heard  the  evidence  and 
arguments  of  counsel  when  you  have  been  instructed  as  to  the 
law  to  be  applied  by  you  in  this  case  it  will  be  your  duty  to 
determine  the  ultimate  fact  whether  the  defendant  did  or  did 
not  steal  the  money,  as  charged  in  the  indictment. 

The  indictment  charges  that  the  defendant  did  on  the , 

in  this  county,  unlawfully  steal,  take  and  carry  away  certain 

money  of  the  amount  and  value  of dollars,  the  personal 

property  of  J.  0.  E.  The  defendant,  having  plead  not  guilty 
of  the  offense  charged,  the  burden  is  on  the  state  to  prove  all 
the  elements  of  the  crime  of  larceny,  beyond  a  reasonable  doubt. 

It  is  your  duty  under  the  law,  notwithstanding  the  indict- 
ment, to  presume  that  the  defendant  is  innocent  unless  or  until 
the  evidence  rebuts  that  presumption.  The  theory  of  this  rule 
of  presumption  is  that  you  enter  upon  the  consideration  of  the 
case,  as  if  the  defendant  is  innocent,  so  that  you  may  fairly  and 
impartially  consider  the  evidence,  without  bias,  prejudice  or 
suspicion  because  of  the  indictment. 

If  the  evidence  overcomes  this  presumption  then  the  rule  of 
evidence  to  be  applied  by  you  is  the  reasonable  doubt  rule. 

A  reasonable  doubt  may  be  such  state  of  mind  on  the  part 
of  the  jurors,  after  having  fairly  and  impartially  weighed  and 


LARCENY. 


1719 


considered  all  the  evidence,  that  you  may  have  an  honest,  sub- 
stantial feeling  of  uncertainty  or  doubt  as  to  the  guilt  of  the 
accused,  and  it  rests  upon  some  reasonable  ground  disclosed  by 
the  evidence. 

If  there  is  nothing  in  the  evidence  that  may  fairly  and 
reasonably  cause  you  to  have  such  a  doubt,  but  on  the  contrary 
you  may  have  such  feeling  in  your  minds  that  you  have  an 
abiding  conviction  of  the  guilt  of  the  accused,  it  will  then  be 
your  duty  to  convict  him. 

If,  however,  you  entertain  a  reasonable  doubt,  which  is  sub- 
stantial and  not  speculative,  or  captious,  then  you  should  acquit 
him. 

What  credibility  shall  be  given  to  the  witness  or  witnesses  is 
within  your  exclusive  province  to  determine.  You  will  consider 
their  demeanor,  their  interest,  if  any,  or  want  of  interest,  the 
reasonableness  or  unreasonableness  of  their  statements,  in  the 
light  of  all  the  facts  and  circumstances  of  the  case. 

The  statute  defining  the  offense  of  larceny  provides  that  who- 
ever steals  anything  of  value  is  guilty  of  larceny.  To  steal 
means  to  take  and  carry  away  the  property  of  another  with  a 
criminal  intent  to  convert  the  same  to  his  own  use.  The  intent 
may  be  inferred  from  a  wrongful  taking  and  carrying  away  of 
the  property.  Anything  of  value  as  used  in  the  statute  com- 
prehends money,  which  is  the  charge  in  the  indictment,  as  well 
as  all  kinds  of  personal  property.  The  property  must  be  wrong- 
fully taken  from  the  possession  of  another  person  who  either 
owns  it  or  who  has  its  lawful  custody. 

The  money  alleged  to  have  been  in  the  possession  of  the  prose- 
cuting witness,  M.  E.,  is  claimed  by  him  to  be — part  of  it — to 
belong  to  his  infant  son— was,  nevertheless,  in  the  custody  of 
M.  E.  himself;  so  that  if  you  find  that  it  was  taken  from  him 
in  the  manner  in  which  I  have  described  and  was,  part  of  it, 
his  son's  money,  nevertheless,  it   would  constitute  larceny. 

Forms  of  verdict  will  be  furnished  you  and  if  you  find  the 
defendant  guilty  you  will  fix  (lie  amount  and  value  of  the 
property  stolen.  If  you  find  him  not  guilty  you  will  simply 
say  so.1 

i  State  v.  ,  Franklin  Co.,  Kinkoad,  J. 


CHAPTER   CXIII. 
LIBEL  AND  SLANDER. 


SEC.  SEC. 

1943.  Libel  per  se,  defined.  1960. 

1944.  Libel   defined — False  and  ma-       1961. 

licious  publication  injur- 
ing reputation. 

1945.  Libel — Another  definition.  1962. 

1946.  Constitutional     limitation    of 

liberty   of   speech — Scope       1963. 
and  extent  thereof. 

1947.  Constitutional  right  of  liberty 

of  speech  and  of  press —       1964. 
Another  form — May    not 
trifle  with  right  of  repu- 
tation. 

1948.  Reasonable   criticism   may    oe       1965. 

made  by  newspaper. 

1949.  Duty  of  jury  to  decide  wheth-       1966. 

er   it   has  libelous    tend- 
ency and  effect — When. 

1950.  Publication  construed  by  court 

as  libelous  per  se.  1967. 

1951.  Jury   to  decide  whether   arti- 

cle published  by  plaintiff.       1968. 

1952.  What    is    a    publication,     and 

who   are  liable    as    pub- 
lishers. 1969. 

1953.  Truth  as  a  defense,  to  be  as 

broad  as  charge.  1970. 

1954.  Innuendo — Meaning     ascribed 

thereby,  for  the  jury.  1971. 

1955.  Financial  condition  of  defend- 

ants. 1972. 

1956.  Good    faith    of    defendants    in       1973. 

making     publication — To       1974. 
rebut  malice.  1975. 

1957.  Malice  in  law,  malice  in  fact. 

1958.  Damages — Compensatory    and 

punitive.  1976, 

1959.  Publishing       information      re- 

ceived from  others. 
1720 


Publication  made  to  whom. 

Slander — Defamatory  words 
must  be  spoken  to  some 
person. 

Words,  when  to  impute  a 
crime. 

Libel — Charge  of  altering  cer- 
tificate —  Meaning  of 
words  for  jury. 

Privileged  communications — 
Whether  extended  to 
member  of  examining 
school   board. 

Libel  —  Reports  of  judicial 
proceedings — Privilege. 

Libel — Publication  from  re- 
port of  examining  com- 
mittee of  county  treas- 
urer. 

Comments  upon  report  made 
with  good  motives. 

Statements  made  to  officer  in 
discovering  crime  privi- 
leged. 

Construction  of  words  and  un- 
derstanding of  hearers. 

Effect  of  adding  excusable 
words. 

Libel — Meaning  of  words  for 
jury. 

Libel — Meaning  of  words. 

Kinds  of  malice  in  slander. 

Damages — Kinds   of. 

Damages  in  libel  per  se — 
When  testimony  rebuts 
legal  malice. 

Libel — Counsel  fees  allowed 
in  compensatory  dam- 
ages. 


8EC. 


LIBEL   AND    SLANDER. 


SEC. 


1721 


1977.  Extent  to  which  libel  is  pub-  1982.  Measure    of     damages— Effect 

lished   as   affecting   dam-  of    agreement    to    accept 

nCTps  retraction. 

1978.  What  constitutes  libel  to  one  1983.  Slander    of    candidate    for   of- 

in  his  business.  fice. 

1979.  Measure  of  damages  to  one  in  1984.  Libel  against  one  in  his  busi- 

his  business.  ness    as    bricklayer    and 

1980.  Same     continued  —  Character  contractor— By   bricklay- 

and   extent    of    business,  ers'  union. 

and    business    reputation  1985.  Same    continued — Measure   of 

to  be   considered.  damages. 

1981.  Same  continued — Effect  of  ab-  1986.  Damages    to    be    awarded    in 

sence  of  malice — Mitigat-  general, 
ing  circumstances. 

Sec.  1943.     Libel  per  se — Defined. 

Libel  may  be  defined  as  follows:  "Any  false  and  malicious 
writing  (and  I  include  printing  in  the  term)  published  of 
another  is  libelous  per  se  when  its  tendency  is  to  render  him 
contemptible  or  ridiculous  in  public  estimation,  or  expose  him 
to  public  hate  or  contempt,  or  hinder  virtuous  persons  from 
associating  with  him,  or  which  accuses  him  of  crime  punishable 
by  the  laws  of  the  state,  or  charges  him  with  conduct,  the 
natural  or  ordinary  results  of  which  would  be  to  prevent  him 
from  engaging  in  and  pursuing  his  vocation  or  profession  (as 
a  teacher,  for  instance),  or  otherwise,  and  thereby  deprive  him 
of  the  earnings  thereof,  and  which  lie  otherwise  would  have 
obtained."  By  publishing  it  is  meant  that  the  matter  must  be 
communicated  to  some  other  person  or  persons  than  its  author. 
But  the  term  should  not  be  restricted  to  this  definition  alone. 
We  also  use  the  term  publication  as  signifying  the  matter  pub- 
lished, as  well  as  the  act  of  publishing,  and  sometimes  such  an 
act  of  publishing  as  is  wrongful.1 

iVoris,   J.,   in    Carrier    v.    Findley,   et   al.     Watson   v.   Trask,   6    0.    533: 
Cooley  on  Torts.  225,  20. 

Sec.  1944.     Libel  defined— False  and  malicious  publication  in- 
juring reputation. 
A  libel  has  been  defined  to  be  a  wrong  occasioned  by  writing 
or  effigy.     It  has  been  held  in  reference  to  an  individual  injury 


1722  INSTRUCTIONS  TO  JURY. 

to  be  a  false  and  malicious  publication  against  one,  either  in 
print  or  writing,  or  by  pictures,  with  intent  to  injure  his  repu- 
tation, and  to  expose  him  to  public  hate,  contempt,  or  ridicule. 
Indeed  everything  written  or  printed  which  reflects  on  the  char- 
acter of  another  and  is  published  without  lawful  justification 
or  excuse  is  a  libel,  whatever  the  intention  may  have  been. 
Any  written  words  are  defamatory  which  impute  to  another 
that  he  has  been  guilty  of  any  crime,  fraud,  dishonesty,  im- 
morality, vice,  or  dishonorable  conduct,  or  has  been  accused  or 
suspected  of  any  such  misconduct,  or  which  suggests  that  the 
person  is  suffering  from  an  infectious  disorder,  or  which  has 
a  tendency  to  injure  him  in  his  office,  profession,  calling,  trade, 
or  reputation. 

A  libel  consists  in  the  abuse  of  that  constitutional  right  by 
maliciously  writing  or  printing,  of  and  concerning  another,  any 
language  or  representation  which  is  false,  and  the  natural 
tendency  and  effect  of  which  is  to  injure  such  other  person  in 
his  character  and  reputation  or  business  in  the  community 
where  he  lives  and  is  known,  or  in  any  way  to  lessen  him  in 
public  esteem.1 

i  Dean  v.  Commercial  Gazette  Co.,  Hamilton  county,  Hunt   (Saml.  F.)   J. 
Approved  by  supreme  court. 

Sec.  1945.     Libel — Another  definition. 

A  libel  in  reference  to  intentional  injury  may  be  defined  to 
be  a  false  and  malicious  publication  against  an  individual,  either 
in  print,  writing,  or  by  pictures,  with  intent  to  injure  his  repu- 
tation, and  expose  him  to  public  hatred,  contempt  or  ridicule, 
or  to  degrade  or  lessen  his  standing  and  reputation  in  the  com- 
munity, or  to  deprive  him  of  the  benefit  of  public  confidence, 
or  social  intercourse.  Indeed,  any  defamatory  language  written 
or  printed  of  another,  and  published,  which  imputes  to  him 
dishonesty,  immorality  or  dishonorable  conduct,  or  which  has  a 
tendency  to  disgrace  or  calumniate  him,  or  which  imputes  to 
him  a  want  of  integrity,  or  misfeasance  or  dereliction  of  official 
duty,  involving  moral  turptitude,  or  which  is  calculated  to 
disparage  him  in  an  office  of  profit,  and  diminish  public  confi- 


LIBEL    AND    SLANDER.  1723 

dence  in  him,  is  libelous,  and  renders  the  person  or  persons  so 
publishing:  such  language  liable  in  damages  to  the  person  de- 
famed, unless  such  publisher  prove  the  truth  of  the  published 
matter,  which  he  or  it  alleges  that  the  libel  is  true.1 
1  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Rogers,  J. 

Sec.  1946.     Constitutional   limitation   of   liberty   of   speech — 
Scope  and  extent  thereof. 

The  bill  of  rights  in  the  Constitution  of  Ohio  declares  that 
"no  law  shall  be  passed  to  restrain  the  liberty  of  speech  or  of 
the  press."  But  the  same  instrument  which  guarantees  the 
right  freely  to  "speak,  write  and  publish  his  sentiments  on  all 
subjects,"  declares  that  he  shall  also  be  "responsible  for  the 
abuse  of  the  right,"  and  that  "every  person  for  an  injury 
done  to  him  in  his  lands,  goods,  person  or  reputation,  shall  have 
remedy  by  due  course  of  law. ' ' 

The  liberty  of  the  press,  properly  understood,  is  not,  there- 
fore, inconsistent  with  the  protection  due  to  private  character. 
It  has  been  well  defined  as  consisting  in  "the  right  to  publish, 
with  impunity,  the  truth,  with  good  motives,  and  for  justifiable 
ends,  whether  it  respects  government,  magistracy,  or  individu- 
als." But  this  liberty  or  privilege  can  not  be  justified  when  it" 
is  exercised  to  publish  libelous  matter  to  the  injury  of  another, 
unless  its  truth  is  pleaded  and  proved. 

Again,  the  publisher  of  a  newspaper  has  exactly  the  same 
right,  and  is  responsible  to  exactly  the  same  extent  for  the  abuse 
of  that  right,  as  any  other  citizen.  His  right  and  responsibility 
in  the  matter  of  a  publication  are  no  more  and  no  less  than  that 
of  others  under  like  circumstances. 

While  editors  as  well  as  others  have  the  full  liberty  to  criti- 
cize the  conduct  and  motives  of  public  men,  and  to  comment 
freely  on  the  acts  of  the  government,  officers,  or  individuals, 
the  discussion  must  be  fair  and  legitimate.  If  one  goes  out  of 
his  way  to  asperse  the  personal  character  of  a  public  man,  and 
to  ascribe  to  him  base  and  corrupt  motives,  he  must  do  so  at 
his  peril;  and  must  either  prove  the  truth  of  what  he  says,  or 
answer  in  damages  to  the  party  injured.1 


1724  INSTRUCTIONS  TO  JURY. 

"The  bill  of  rights  in  the  Constitution  of  Ohio  declares  that 
every  citizen  may  freely  speak,  write  and  publish  his  sentiments 
on  all  subjects,  being  responsible  for  the  abuse  of  that  right,  and 
no  law  shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech 
or  of  the  press.  The  publisher  of  a  newspaper  has  exactly  the 
same  right  and  is  responsible  to  exactly  the  same  extent  for  the 
abuse  of  that  right  as  any  other  citizen.  His  right  and  respon- 
sibility in  the  matter  of  a  publication  are  no  more  and  no  less 
than  that  of  others  under  like  circumstances.2 

i  Jones   v.  Ohio   State  Journal  Co..  Franklin   county.     Rogers,  J. 
2  Dean  v.  Commercial  Gazette  Co.,  Hamilton  county.     Hunt,  J. 

Sec.  1947.  Constitutional  right  of  liberty  of  speech  and  of 
press — Another  form — May  not  trifle  with 
right  of  reputation. 

As  to  the  liberty  of  speech  and  the  press,  the  people  of  Ohio 
are  so  jealous  of  the  right  of  free  speech  and  the  free  press,  that 
we  have  provided  in  our  constitution :  ' '  That  every  citizen  may 
freely  speak,  write,  and  publish  his  sentiments  on  all  subjects, 
being  responsible  for  the  abuse  of  the  right;  no  law  shall  be 
passed  to  restrict  or  abridge  the  liberty  of  speech  or  of  the 
press."     *     *     * 

While  calling  your  attention  to  the  constitutional  provision, 
we  must  not  omit  to  say  that  this  ..liberty  to  freely  speak,  write, 
and  publish  one's  sentiments  on  all  subjects  is  not  inconsistent 
with  the  protection  due  to  private  character,  and  is  coupled 
with  an  express  declaration  of  its  responsibility  for  its  abuse. 
It  has  been  well  defined  as  consisting  in  the  right  to  publish 
with  impunity  the  truth  with  good  motive  and  for  justifiable 
ends ;  but  this  liberty  or  privilege  can  not  be  justified  when  it 
is  exercised  to  publish  libelous  matter  to  the  injury  of  another. 
So  far  as  this  action  is  concerned,  this  comprehends  the  privi- 
lege of  the  defendant  publishing  company  to  publish  the  article 
in  contention.1 

No  person  or  newspaper  has  any  right  to  trifle  with  the 
reputation  of  any  person,  or  by  carelessness  or  recklessness  to 


LIBEL    AND   SLANDER.  1725 

injure  the  good  name,  profession,  or  business  of  another  by  the 
publication  of  libelous  matter.  It  can  not  do  so  without  answer- 
ing for  the  libel  in  damages;  and  the  greater  the  influence  of 
the  author,  if  a  private  individual,  and  the  greater  the  influence 
and  circulation  of  the  paper,  if  by  a  newspaper,  the  greater 
the  wrong,  and  makes  the  duty  more  imperative  to  be  careful 
and  circumspect  in  the  matter  of  the  publication.  No  popular 
greed  for  defamatory  news  can  be  an  excuse  for  its  publica- 
tion; and  in  no  way  can  it  relieve  the  defendant  from  legal 
liability  attaching  to  such  publication.  The  newspaper  bus- 
iness like  any  other  must  be  conducted  with  due  regard  to 
the  rights  of  others.  It  is  a  wise  rule  of  law  that  everyone 
should  conduct  himself  and  his  own  business  affairs  in  such 
a  reasonable  and  prudent  manner  that  others  be  not  injured 
thereby,  and  the  prudence  required  is  commensurate  with  the 
hazards  occasioned. 

Publishers  of  newspaper  articles  are  subordinate  to  this  rule. 
As  already  stated,  the  truth  is  privileged  when  published  from 
good  motives  and  for  justifiable  ends,  but  the  truth  not  having 
been  interposed  as  a  defense  in  this  action,  the  only  effect  to  be 
given  to  the  evidence  offered  as  to  the  truth  of  the  alleged 
libelous  matter  is  to  reduce  the  amount  of  damages.  But  this 
evidence  can  not  operate  to  defeat  recovery  for,  at  least,  nominal 
damages.  *  *  *  To  reduce  your  verdict  on  this  ground  to 
nominal  damages  the  proof  of  the  truth  of  the  matter  charged 
should  cover  the  whole  of  it.  That  is,  it  should  be  as  broad  as 
the  charge  and  show  that  the  whole  of  it  is  truthful,  for  if  any 
part  of  it  should  appear  from  the  evidence  to  be  false,  and  that 
part  caused  injury  to  the  plaintiff,  he  would  be  entitled  to 
recover  compensatory  damages  at  least.2 

I  Sec  Cooley  oil  Torts,  255,  217  as  to  liberty  of  pross. 
-'  Voris,  J.,  in  Carrier  v.  Findley,  Summit  Co.  Com.  Plea9. 

Sec.  1948.     Reasonable  criticism  may  be  made  by  newspaper. 

The  right  to  exercise  reasonable  criticism  should  be  extended 
liberally  to  the  newspaper  press. 


1726  INSTRUCTIONS  TO  JURY. 

Just  criticism,  though  severe,  may  be  a  great  conservator  of 
the  character  and  morals  of  the  people.  To  truthfully  and 
fairly  hold  up  to  public  view  and  condemnation,  conduct  that 
is  wrongful  and  detrimental  to  social  well-being  is  a  very  useful 
and  important  office  of  the  newspaper  press ;  you  are  therefore 
instructed  that  whenever  the  object  of  any  newspaper  publica- 
tion fairly  considered  is  not  to  injure  reputation,  but  to  correct 
and  to  hold  up  to  public  condemnation  that  which  is  hostile 
to  morality  and  official  integrity,  does  not  come  within  the 
definition  of  libelous  matter,  so  long  as  the  author  or  authors 
keep  themselves  reasonably  and  in  good  faith  within  the  line 
of  truthful  and  wholesome  criticism.1 
i  Voris,  J.,  in  Carrier  v.  Findley,  Summit  Co.  Com.  Pleas. 

Sec.  1949.     Duty   of  jury  to  decide  whether  it  has  libelous 
tendency  and  effect — When, 

It  will  be  your  duty  to  take  the  article  submitted  in  evidence, 
read  it  carefully  in  whole  and  detail,  and  decide  as  men  of 
judgment  and  experience  if  it  had  such  a  tendency  and  effect 
as  contended  for  by  the  plaintiff  or  any  of  these  tendencies  and 
effects,  so  far  as  the  reputation  and  character  of  the  defendant 
are  concerned;  or  whether,  on  the  other  hand,  as  claimed  by 
the  defendant,  it  can  not  be  fairly  said  to  have  had  such  ten- 
dencies or  effect,  or  any  of  them. 

If  in  your  judgment  the  publication  of  the  article  in  ques- 
tion had  no  such  tendencies  and  effect  as  have  been  mentioned, 
it  will  be  your  duty  to  return  a  verdict  for  the  defendant  with- 
out proceeding  further  in  the  case. 

If,  however,  by  reason  of  the  publication  of  the  article  in 
question,  you  should  find  that  the  plaintiff  was  injured  in  his 
character  and  reputation,  and  has  been  injured  as  claimed  in 
the  petition,  then  your  verdict  must  be  for  the  plaintiff,  because 
it  is  a  presumption  of  law  that  anything  stated  in  such  publica- 
tion derogatory  or  injurious  to  the  character  and  reputation  of 
the  plaintiff  is  false,  and  the  law  further  presumes  that  the 
defendant,  in  publishing  the  same,  intended  to  cause  whatever 
injury  naturally  would  and  did  result  from  such  publieation. 


LIBEL  AND    SLANDER.  1727 

Sec.  1950.     Publication  construed  by  court  as  libelous  per  se. 

It  being  the  duty  of  the  court  to  construe  the  entire  publica- 
tion in  connection  with  the  pleadings,  and  to  give  the  correct 
rule  to  the  jury,  as  to  whether  or  not  the  alleged  publication 
is  libelous  per  se,  the  court  instructs  you  that,  taking  the 
article  as  a  whole  and  giving  it  the  construction  which  its 
language  imports,  the  publication  is  in  and  of  itself  libelous, 
or,  as  expressed  in  the  law,  libelous  per  se.  The  language  of 
the  article  being  libelous  per  se,  the  court  instructs  you  that  the 
presumption  is  that  such  libelous  matter  was  false  and  malicious, 
and,  if  the  plaintiff  makes  proof  that  such  libelous  matter  was 
published  of  and  concerning  him  by  the  defendants,  or  any  of 
them,  it  is  not  necessary  in  the  first  instance  in  making  said 
publication.1 

i  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Kogers,  J.     Affirmed, 
by  Cir.  Ct. 

Sec.  1951.    Jury  to  find  whether  article  published  of  plaintiff. 

Therefore,  the  first  question  which  you  have  to  consider  is 
this :  whether  or  not  the  defendants  or  any  of  them  published  the 
alleged  libel  of  and  concerning  the  plaintiff.  If  you  find  from 
the  evidence  that  the  libel  was  published  of  and  concerning  the 
plaintiff,  by  the  defendants,  or  any  of  them,  the  defendants,  or 
any  of  them,  so  found  by  you  to  have  published  said  libel  of  the 
plaintiff  are  liable  in  damages  therefor  to  the  plaintiff  for  the 
injury  thereby  sustained,  unless  such  defendant  or  defendants 
have  established  by  a  preponderance  of  the  evidence  the  truth 
of  said  publication ;  for  proof  of  the  truth  is  a  complete  defense 
to  this  action. 

Sec.  1952.  What  is  a  publication,  and  who  are  liable  as  pub- 
lishers. 
The  next  two  questions  to  which  the  <-«.ur1  will  advert  are, 
namely,  what  is  a  publication,  and  who  are  liable  as  publishers 
within  the  meaning  of  Hie  law?  By  publication  is  meant  the 
communication  of  the  alleged  defamatory  matter  by  first  print- 


1728  INSTRUCTIONS  TO  JURY. 

ing  it  in  a  newspaper  and  then  by  circulating  the  newspaper 
containing  the  matter,  so  as  to  bring  the  alleged  defamatory 
matter  to  the  knowledge  of  one  or  more  third  persons  (other  than 
the  parties  to  the  libel),  who  read  and  understood  it. 

With  regard  to  those  who  are  liable  as  publishers,  the  court 

charges  you  that  all  who  knowingly  cause  or  participate  in  the 

publication    of   libelous   matter   are    responsible    as    publishers. 

This  includes  all  who  in  any  wise  aid,  assist  or  advise,  or  are 

directly  concerned  in  the  production  of  the  defamatory  matter 

with  a  view  to  its  ultimate  publication,  that  is,   all  who  are 

instrumental  in  making  or  procuring  to  be  made  the  defamatory 

publication  are  jointly  and  severally  liable  therefor  as  publishers. 

If,  therefore,  you  believe   from  the   evidence  that  through  the 

instrumentality  of  T.  0.  S.  J.  Co.,  it  printed  and  caused  to  be 

circulated  the  newspaper  carrying  the  alleged  libel,  you  will  be 

warranted  in  finding  it  liable  as  the  publisher  thereof.     In  like 

manner,  if  you  believe  from  the  evidence  that  S.  G.  McC.  was 

managing    editor    of   the    newspaper    carrying   said    libel,    and 

participated  in  having  the  matter  printed  and  circulated,  you 

will   be   warranted    in  finding  him   responsible   as   a   publisher 

thereof.     Also,  if  you  believe  from  the  evidence  that  R.  F.  W. 

lent  his  aid,  assistance  or  advice  to  the  ultimate  publication  of 

the  defamatory  matter,  or  in  any  wise  participated  in  procuring 

its  publication,  you  will  be  warranted  in  finding  him  responsible 

as  a  publisher  thereof.     You   will,   therefore,   consider  all   the 

facts  and   circumstances  adduced  in  the  evidence  at  the  trial 

and  determine  whether  or  not'  the  said  defendants,  or  any  of 

them,  were  instrumental  in  procuring  the  publication  to  be  made, 

and  if  so,  you  are  warranted  in  holding  such  as  publishers.    But, 

if  the  defendants,  or  any  of  them,  merely  had  knowledge  of  the 

proposed  publication  and  consented  thereto,  but  had  no  authority 

or  control  over  the  matter  of  its  production  or  publication,  and 

were  in  no  wise  instrumental  in  its  ultimate  publication,  he  or 

they,  as  the  case  may  be,  are  not  responsible  as  publishers  thereof. 

If  in  your  inquiry  to  determine  who  of  the  defendants,  if  any, 

are  responsible  as  publishers  you  determine  that  one  or  more 


LIBEL   AND   SLANDER.  1729 

of  the  defendants  are  not  responsible  as  publishers,  that  is,  were 
not  instrumental  in  procuring  the  publication  to  be  made,  you 
need  not  inquire  further  as  to  such  defendant  or  defendants, 
but  will  return  your  verdict  for  such  defendant  or  defendants.1 

i  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Rogers,  J.     Affirmed, 
by  Cir.  Ct. 

Sec.  1953.    Truth  as  a  defense — To  be  as  broad  as  charge. 

In  order,  however,  that  proof  of  the  truth  of  said  libelous 
charges  may  constitute  a  complete  defense,  it  is  essential  that 
such  proof  of  their  truth  must  be  as  broad  as  the  defamatory 
charges  contained  in  the  article,  and  if  the  truth  of  one  or  more 
of  the  defamatory  charges  is  not  made  out  by  proof,  the  court 
instructs  you  that  the  plea  of  the  truth  thereof,  as  alleged  in 
the  second  defense  of  T.  0.  S.  J.  Co.,  will  not  be  completely  made 
out ;  or,  in  other  words,  in  such  case,  the  defendant  will  fail  to 
justify.  But,  the  court  instructs  you  that  even  though 
T.  0.  S.  J.  Co.  has  not  made  out  by  its  proof  the  truth  of  all 
the  defamatory  charges  in  said  article,  if  it  has  made  out  by 
proof  the  truth  of  any  part  of  such  defamatory  charges,  to  that 
extent  such  proof  is  admissible  and  competent,  in  your  con- 
sideration of  this  case,  in  mitigation  or  reduction  of  damages 
to  be  awarded  the  plaintiff.1 

i  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Rogers,  J.     Affirmed, 
by  Cir.  Ct 

Sec.  1954.     Innuendo — Meaning  ascribed  thereby,  for  the  jury. 

Some  of  the  allegad  libelous  matters  pleaded  in  the  plaintiff's 
petition  are  set  forth  under  what  are  termed  in  law,  innuendoes. 
The  innuendoes,  so  called,  are  in  parentheses,  and  usually  begin 
with  the  words  "meaning  thereby,"  etc.,  and  on  your  examina- 
tion of  the  petition  you  will  readily  observe  the  mailers  to  which 
the  court  refers.  An  innuendo  is  a  clause  inserted  in  the  peti- 
tion containing  an  averment  which  is  explanatory  of  the  pre- 
ceding words  or  statements.  It  is  the  office  of  the  innuendo  to 
define  the  defamatory  meaning  which  the  plaintiff  sets  on  the 
words,  to  show  how  they  come  to  have  that  meaning,  and  also 


1730  INSTRUCTIONS  TO  JURY. 

to  show  how  they  relate  to  the  plaintiff,  whenever  that  is  not 
clear  on  the  face  of  them.  The  court  instructs  you  that  whether 
the  meaning  of  the  defendants,  or  any  of  them,  who  are  found 
by  you  to  have  published  said  matter,  by  the  language  used,  was 
what  the  several  innuendoes  aver  it  to  be,  is  a  question  of  fact 
for  the  jury,  that  is,  whether  such  meaning  was  intended  by  the 
defendants.  This  question  of  fact,  however,  so  submitted  to  you, 
namely,  whether  the  meaning  ascribed  to  the  language  by  the 
several  innuondoes  averred  in  the  petition,  was  the  meaning 
intended  by  the  defendants,  or  any  of  them,  is  to  be  considered 
by  you  only  on  the  question  of  damages,  as  a  matter  of  excuse 
in  mitigation  of  punitive  damages,  and  not  as  a  defense  that  will 
prevent  a  recovery,  if  you  determine  that  the  defendants,  or 
any  of  them,  published  the  alleged  matter  in  question  of  and 
concerning  the  plaintiff,  and  if  you  further  find  that  T.  0.  S.  J. 
Co.,  if  it  published  said  matter,  has  not  proved  the  truth  of  such 
matter.  That  is,  you  have  the  right  to  determine  whether  or 
not  the  meaning  which  the  plaintiff  ascribes  to  the  words  and 
statements,  in  the  several  innuendoes,  was  the  meaning  which 
the  defendants  intended.  But  such  meaning  which  you  may 
find  the  defendants  intended,  from  the  evidence,  can  only  be 
used  to  mitigate  the  damages,  if  any,  and  not  to  aggravate  or 
increase  them.1 

i  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Rogers,  J.     Affirmed, 
by  Cir.  Ct. 

Sec.  1955.     Proof  of  financial  condition  of  defendants. 

Evidence  has  been  offered  by  the  plaintiff  tending  to  prove 
the  financial  condition  of  some  of  the  defendants,  both  at  the 
time  of  the  alleged  publication  and  at  the  present  time.  Now, 
the  purpose  of  this  evidence,  so  far  as  it  tends  to  prove  the 
defendants'  wealth,  or  any  of  them,  at  the  time  of  the  publica- 
tion, is  to  make  proof  of  the  influence  which  a  publication  by  a 
person  of  wealth  will  probably  have  in  a  community  and  the 
consequent  extent  of  the  injury  which  a  publication  by  a  wealthy 
person  may  probably  produce.  You  will  consider  this  evidence, 
therefore,  only  for  this  purpose,  and  no  other.  The  purpose  of 
the  evidence  introduced  tending  to  prove  the  defendants '  wealth, 


LIBEL   AND   SLANDER.  1731 

or  any  of  them,  at  the  present  time,  is  a  circumstance  to  be 
considered  by  you  in  the  matter  of  awarding  punitive  damages, 
if  any,  as  against  any  of  said  defendants  concerning  whom  the 
evidence  has  been  introduced  as  to  their  wealth,  if  you  find 
that  they,  or  any  of  them,  are  liable  to  the  plaintiffs ;  as  wealthy 
persons  might  slander  others  with  impunity  and  pay  the  com- 
pensatory damages  that  might  be  awarded,  and  such  payment 
would  not  deter  this  slanderous  conduct.  You  will,  therefore, 
consider  such  evidence  only  for  the  purpose  of  awarding  puni- 
tive damages  against  the  defendants,  or  any  of  them,  whom  you 
may  find  liable  to  the  plaintiff,  if  the  evidence  justifies  your 
awarding  such  punitive  damages.1 

i  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Rogers,  J.     Affirmed, 
by  Cir.  Ct. 

Sec.  1956.  Good  faith  of  defendants  in  making  publication — 
To  rebut  malice. 
The  defendants  claim  that  in  making  the  publication  in 
question,  they  acted  in  good  faith,  after  careful  examination 
of  the  facts  and  circumstances  on  which  they  claim  the  news- 
paper article  was  founded,  and  that  they  believed  the  truth  of 
the  article  so  published,  and  in  support  of  such  claim  evidence 
has  been  introduced  of  common  and  general  rumors  in  the 
community  prior  to  the  article  in  question,  and  of  publications 
in  other  newspapers,  and  of  other  facts  and  circumstances 
tending  to  show  that  they  used  care  and  caution  before  making 
the  publication,  in  the  way  of  investigations  and  the  like.  Now, 
the  court  instructs  you  that  this  evidence  introduced  by  the 
defendants  is  admissible,  not  to  prove  the  truth  of  the  matters 
and  things  about  which  the  testimony  has  been  given,  but  to 
rebut  any  actual  malice  on  the  part  of  the  defendants,  and  to 
mitigate  punitive  damages.  The  court,  instructs  you  that  such 
evidence  is  not  admissible,  and  must  not  be  considered  by  you, 
for  the  purpose  of  mitigating  compensatory  damages,  but  only, 
as  just  indicated,  of  mitigating  punitive  damages,  if  any,  which 
you  may  sec  fit  to  award;  Eor  defendants  can  no1  reduce  com- 
pensatory damages  by  proof  of  mitigating  circumstances,  except 
such  as  in  their  nature  bear  upon  the  question  of  the  extent  of 


1732  INSTRUCTIONS  TO  JURY. 

the  injury  actually  sustained.     The  court,  however,  instructs 

you  that  all  those  facts  and  circumstances  introduced  in  evidence 

by  the  defendants,  and  tending  to  prove  the  truth  of  the  alleged 

defamatory  charges,  the  truth  of  which  is  set  up  in  the  second 

defense  of  T.  0.  S.  J.  Co.,  if  the  truth  is  not  made  out,  may  be 

considered    by    you    in    mitigation    of    compensatory    damages 

against  the  defendants,  or  any  of  them,  whom  you  may  find  are 

liable  to  the  plaintiff.1 

i  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Kogers,  J.     Affirmed, 
by  Cir.  Ct. 

Sec.  1957.    Malice  in  law — Malice  in  fact. 

If  you  find  for  the  plaintiff,  against  one  or  more  or  all  the 
defendants,  the  next  question  for  your  consideration  is  that  of 
awarding  damages.  In  this  connection,  the  court  desires  to 
instruct  you  with  regard  to  the  two  kinds  of  malice  that  may 
enter  into  a  libel,  sometimes  called  implied  malice,  and  malice 
in  fact,  sometimes  called  express  malice.  Malice  in  law,  or 
implied  malice,  is  presumed  from  the  publication  of  the  article 
in  question,  but  this  does  not  mean  that  the  publisher  or  pub- 
lishers had  actual  ill  will,  hatred  or  revenge  against  the  plaintiff. 
It  only  means  that  from  the  character  of  the  publication  itself 
the  law  presumes  that  it  was  made  without  legal  justification 
or  excuse,  that  is,  that  it  was  maliciously  done. 

Malice  in  fact,  or  actual  malice,  is  held  to  mean  personal 
hatred  or  ill  will  or  revenge  towards  another,  or  a  wanton  and 
reckless  disregard  of  the  rights  of  another,  or  a  desire  or  actual 
intention  to  injure  another,  while  malice  in  law  may  exist  in 
connection  with  an  honest  and  laudable  purpose. 

To  malice  in  law,  or  implied  from  the  defamatory  character 
of  the  publication  itself,  there  may  be  superadded  by  proof 
express  malice,  to  increase  the  damages. 

The  plaintiff  claims  that  the  defendants  published  the  libelous 
matter  in  question,  not  only  with  implied  malice,  but  also  with 
actual  malice  towards  the  plaintiff,  and  evidence  has  been 
adduced  on  the  part,  of  the  plaintiff  tending  to  make  proof  of  the 
existence    of    actual    malice.      Among   other   evidence   on    this 


LIBEL  AND   SLANDER.  1733 

subject,  other  publications  in  T.  0.  S.  J.  subsequent  to  the 
alleged  libel  relied  on  in  the  petition,  have  been  introduced  in 
evidence,  which  plaintiff  claims  are  of  a  like  tenor  to  the  publica- 
tion set  forth  in  the  petition. 

Now,  the  court  instructs  you  that  these  subsequent  publications 
and  their  introduction  in  evidence,  so  far  as  they  are  competent 
for  the  plaintiff,  are  admissible  only  for  the  purpose  of  reflecting 
upon  the  question  of  actual  malice,  if  any,  on  the  part  of  the 
defendants,  or  any  of  them,  in  publishing  the  alleged  libelous 
matter  mentioned  and  relied  on  in  the  petition  as  a  ground  of 
recovery.  The  court  cautions  you  that  such  subsequent  publica- 
tions can  not  be  considered  by  you  as  a  basis  for  giving 
independent  damages,  or  as  a  foundation  of  a  recovery  in  and 
of  themselves,  nor  to  increase  the  damages  further  than  as  they 
affect  the  degree  of  actual  malice,  if  any,  with  which  the  libelous 
matter  as  set  forth  in  the  petition  and  relied  on  as  a  ground  of 
recovery,  was  published.1 

i  Jones  v.  Ohio  State  Journal  Co.,  Franklin  county.     Rogers,  J.     Affirmed, 
by  Cir.  Ct. 

Sec.   1958.  Damages — Compensatory  and  punitive. 

The  court  instructs  you  that  the  damages  which  you  may 
award,  if  the  evidence  justifies,  are  of  two  kinds,  namely;  com- 
pensatory, and  exemplary  or  punitive  damages. 

The  object  of  the  law  in  allowing  compensatory  damages  as 
to  make  the  plaintiff  whole,  that  is,  to  compensate  him  for  the 
actual  injury  which  he  has  sustained  to  his  character  and 
reputation  by  reason  of  the  alleged  defamatory  publication. 

Exemplary  or  punitive  damages  are  such  as  may  be  awarded 
in  case  actual  malice  is  proved.  Such  damages  are  assessed,  if 
at  all,  on  the  ground  of  public  policy,  and  not  because  the  plain- 
tiff has  any  right  to  the  smart  money,  as  if  is  often  called.  But 
the  object  of  the  law,  as  the  term  implies,  is  to  punish  the  wrong- 
doer in  dollars  and  cents,  and  to  give  a  warning  to  prevent  the 
repetition  of  the  wrong  or  a  similar  wrong  to  others,  and  the 
amount  of  such  exemplary  damages,  if  any,  is  left  to  your 
judgment. 

The  court  instructs  you  that  in  awarding  (compensatory 
damages,  you  may  take  into  consideration,   as   a   part  of  such 


1734  INSTRUCTIONS  TO  JURY. 

damages,  reasonable  counsel  fees  of  the  plaintiff  in  prosecuting 
his  action,  whether  there  are  mitigating  circumstances  or  not; 
and  in  awarding  damages,  whether  compensatory  and  punitive, 
or   compensatory   alone,   the   amount   thereof   is   not    to   exceed 

$ . 

As  heretofore  stated,  the  publication  in  question  being  libelous 
per  se,  compensatory  damages  are  presumed  from  the  publication 
itself.  It  is  true  that  there  is  no  arithmetical  standard  for  com- 
puting these  damages.  Character  has  no  price  in  the  market, 
as  property  has,  by  which  the  damages  can  be  measured.  It 
may  not  be  easy  to  say  what  the  damages  are,  but  that  does  not 
relieve  the  jury  from  ascertaining  and  declaring  what  they  are. 
if  the  injury  has  resulted  to  the  plaintiff.  Of  course,  it  is  not 
the  idea  of  libel  suits  that  the  plaintiff  is  to  make  money  or  to 
speculate  upon  bis  reputation.  Much,  therefore,  is  left  to  your 
sound  judgment  and  discretion  in  the  matter  of  awarding 
damages.  It  is  for  you  to  say  how  much  the  plaintiff's  reputa- 
tion has  been  damaged,  if  at  all.  In  estimating  compensatory 
damages,  it  is  your  duty  to  take  into  consideration  those 
mitigating  circumstances,  if  any  have  been  proved,  which  in 
their  nature  bear  upon  the  question  of  the  extent  of  the  injury 
actually  sustained.  And,  if  the  libelous  publication  was  not 
made  with  actual  malice,  personal  ill  will,  hatred,  or  some  such 
feeling,  you  can  only  allow  compensatory  damages.  "But,  if 
the  defamatory  publication  was  made  with  actual  malice,  then 
you  may  superadd  exemplary  damages  to  the  compensatory 
damages  awarded,  in  such  amount  as  in  your  judgment  the  case 
deserves. 

In  that  connection,  the  court  instructs  you  that  if  you 
determine  that  one  or  more  of  the  defendants  published  the 
article,  or  caused  it  to  be  published,  but  without  actual  malice. 
and  that  others  published  the  article  with  actual  malice,  you 
will  by  your  verdict  allow  a  recovery  of  an  amount  against  all 
whom  you  find  liable,  as  compensatory  damages  and  a  further 
amount  against  one  or  more,  as  exemplary  damages,  whom  you 
may  find  published  said  article  with  actual  malice,  and  liable  to 
the  plaintiff. 


LIBEL   AND   SLANDER.  1735 

If  you  determine  that  those  defendants  whom  you  find  liable, 
if  at  all,  published  said  article  without  actual  malice,  you  will 
award  compensatory  damages  only. 

If  you  determine  that  all  those  defendants  whom  you  find 
liable,  if  at  all,  published  said  article  with  actual  malice,  you 
may  add  to  the  compensatory  damages,  punitive  damages  against 
all  such  as  above  indicated. 

If  you  find  for  the  defendants,  or  any  of  them,  you  will  say 
so  in  your  verdict. 

Upon  retiring  to  your  room  you  will  select  one  of  your  number 
foreman,  and  upon  arriving  at  a  verdict  your  foreman  will  sign 
the  same  and  you  return  with  it  into  court.1 

i  Jones  v.  The  Ohio  State  Journal  Co.,  et  al.  Court  of  Com.  Pleas,  Frank- 
lin Co.,  O.     Rogers,   J.     Affirmed,   by  Cir.  Ct. 

Sec.  1959.     Publshing  information  received  from  others — Lia- 
bility therefor. 

A  person  receiving  information  from  others,  which  if  true 
would  be  injurious  to  the  character  or  reputation  of  another,  is 
not  justified  in  publishing  that  information  to  the  prejudice  of 
that  other  person  merely  because  he  believes  it  to  be  true;  he 
must  not  only  have  good  reason  to  believe  it  to  be  true,  but  he 
must  have  published  it  from  justifiable  motives,  and  if  it  turns 
out  to  be  untrue,  and  he  acted  without  due  diligence,  and 
another  is  injured  thereby,  he  can  not  therefore  escape  liability. 

There  is  no  legal  immunity  in  favor  of  anyone  repeating 
libelous  matter.  He  who  republishes  such  matter  takes  the  risk 
of  its  untruthfulness  and  liability  for  what  injury  it  may  cause.1 

i  Voris,  J.,  in  Carrier  v.  Findley,  Summit  Co.  Com.  Pleas;  Cooley  on 
Torts,  259  (*  220).  Giving  with  the  publication  the  name  of  the 
author  is  no  protection.  Haines  v.  Welling,  7  O.  253;  Fowler  v. 
Chichester,  26  0.  S.  9;  Dole  v.  Lyon,  10  Johns.  447. 

Sec.  1960.     Publication  made  to  whom. 

To  constitute  a  libel,  publication  must  be  made  to  a  person 
or  persons  other  than  the  person  against  whom  the  libelous 
words  are  published. 


1736  INSTRUCTIONS  TO  JURY. 

It  would  not  be  libelous  for  the   defendant  to  send  to  the 
plaintiff  a  communication  which  would  be  libelous  if  sent  to  a 
person  other  than  the  plaintiff.1 
iNye,   J.,   in    Stevens   v.   McBride,   Summit   Co.    Com.   Pleas. 

Sec.  1961.     Slander — Defamatory  words   must  be   spoken   to 
some  person. 

In  legal  contemplation,  defamatory  words  do  not  constitute 
slander,  unless  they  are  spoken  to  some  person  or  persons  other 
than  the  individual  concerning  whom  they  are  uttered.  To  say 
to  one's  face  any  derogatory  or  evil  thing  respecting  him  is  no 
defamation,  nor  is  it  a  publication  in  a  legal  sense  to  speak 
slanderous  words  to  a  person  in  a  public  place,  and  in  the 
presence  of  or  near  to  other  people,  if  in  fact  the  words  thus 
spoken  are  not  heard  or  understood  by  anyone  excepting  tue 
individual  to  whom  they  are  addressed. 

If,  therefore,  you  should  find  from  the  evidence  that  the 
defendant  in  this  case  did  use  the  language  imputed  to  him  by 
plaintiff,  and  that  he  uttered  the  same  in  the  presence  of  the 
plaintiff  and  various  other  persons,  but  you  further  find  that  the 
words  so  spoken  by  him  were  not  heard  or  understood  by  any 
one  excepting  the  plaintiff,  to  whom  they  were  addressed,  then 
you  are  instructed  as  a  matter  of  law  that  the  acting  of  the 
defendant  in  so  using  said  words  was  not  slander,  and  the  plain- 
tiff can  not  recover,  and  your  verdict  should  be  for  the 
defendant.1 
i  D.  F.  Pugh,  J.     Lennon  v.  Rice.  Franklin  Co.  Com.  Pleas. 

Sec.  1962.     Words  when  to  impute  a  crime. 

To  entitle  the  plaintiff  to  a  verdict  it  must  appear  that  the 
words  which  the  defendant  spoke  imputed  to  the  plaintiff  the 
commission  of  some  crime.  If  the  defendant  accused  the  plain- 
tiff of  being  a  thief,  or  charged  her  of  having  stolen  property 
of  his.  these  words  did  charge  the  commission  of  a  crime  if 
there  were  no  qualifying  or  modifying  words  used  at  the  same 


LIBEL   AND   SLANDER.  1737 

time  and  in  connection  with  the  terms  "thief,"  or  "steal,"  or 
stole, ' '  because  stealing — larceny — is  an  indictable  offense.  But 
if  the  accusation  is  or  was  that  the  latter  took  money  or  any 
other  property  of  the  former,  it  does  not  impute  a  crime,  unless 
other  language  is  used  to  expand  its  meaning  that  far.  That  is, 
if  you  should  find  from  the  evidence  that  the  defendant  did  not 
use  the  word  "thief,"  or  did  not  charge  the  plaintiff  with 
having  stolen  the  property  or  having  committed  a  theft,  but 
simply  used  language  that  she  took  the  property,  then  such 
words  would  not  in  and  of  themselves  constitute  slanderous 
words,  unless  other  words  were  used  in  connection  with  them  to 
expand  them  so  as  to  mean  that  he  charged  her  with  a  crime.1 
i  Pugh,  J.     Lennon  v.  Rice,  Franklin  Co.  Com.  Pleas. 

Sec.  1963.     Libel — Charge  of  altering  certificate — Meaning  of 
words  for  jury. 

We  can  not  say  as  a  matter  of  law  that  the  charge  of  altering 
the  certificate,  contained  in  the  alleged  article,  is  criminal, 
there  being  no  published  declaration  that  it  was  done  with  the 
intent  to  defraud,  and  no  innuendo  in  the  amended  petition 
charging  that  intent.  But  we  leave  it  to  you  to  say,  as  a  matter 
of  fact,  from  the  evidence,  whether  its  effect  was,  or  was  not,  to 
render  the  plaintiff  contemptible  in  public  estimation,  or  to 
injure  his  good  name ;  whether  or  not  the  natural  and  ordinary 
effect  would  be  to  prevent  him  from  engaging  in  his  profession 
as  a  teacher,  or  be  injurious  to  his  feelings. 

Among  other  things,  R.   S.,  sec.   13083,   defines  forgery  as: 
"Whoever  falsely  alters  any  certificate  authorized  by  the  laws 
of  this  state  with  the  intent  to  defraud  is  guilty  of  forgery."  l 
i  Voris,  J.,  in  Carrier  v.  Findley,  Summit  Co.  Com.  Pleas. 

Sec.  1964.     Privileged  communications — Whether  extended  to 
member  of  examining  school  board. 

As  to  the  privilege  of  the  members  of  the  examining  board,  I 
will  say  to  you  that  a  member  of  the  board  of  county  examiners 


1738  INSTRUCTIONS  TO  JURY. 

is  a  public  officer  who  performs  duties  of  the  highest  order.  The 
law  makes  it  obligatory  on  him  to  make  an  intelligent,  honest, 
and  thorough  examination  into  the  qualifications  of  every 
individual  who  teaches  in  the  public  schools  of  the  county.  The 
statute  is  emphatic  on  this  point.  No  one  can  become  such  a 
teacher  "until  he  or  she  has  obtained  from  the  board  of 
examiners  a  certificate  of  good  moral  character,  and  that  he  or 
she  is  qualified  to  teach  orthography,  reading,  writing,  arith- 
metic, geography,  English  grammar,  and  the  history  of  the 
United  States,  and  possesses  an  adequate  knowledge  of  the 
theory  and  practice  of  teaching,  and,  if  required  to  teach  other 
branches,  that  he  or  she  has  the  requisite  qualifications ;  provided 
that  after  January  1,  1889,  no  person  shall  be  employed  as  a 
teacher  in  any  common  school  who  has  not  obtained  from  such 
a  board  a  certificate  that  he  is  qualified  to  teach  physiology  and 
hygiene,  and  further  if  at  any  time  the  recipient  of  the  certifi- 
cate be  found  intemperate,  immoral,  incompetent,  or  negligent, 
the  examiners,  or  any  two  of  them,  may  revoke  the  certificate. 
*  *  *  And  when  any  recipient  is  charged  with  intemperance 
or  other  immorality,  the  examining  board  shall  have  power  to 
send  for  and  examine  witnesses  under  oath."  * 

The  power  so  conferred,  and  the  duties  so  imposed,  create 
the  right  to  make  the  most  searching  inquiry  into  the  conduct, 
manners,  qualifications,  morals,  intellectual  potency  of  all  persons 
holding  certificates,  or  applying  for  one.  This  official  discretion 
should  be  exercised  with  sincere,  intelligent,  and  courageous 
fidelity,  and  every  such  teacher  or  applicant  enters  as  a  candidate 
or  upon  his  public  duties  as  teacher  upon  the  express  under- 
standing that  his  whole  conduct,  in  the  respects  enumerated,  is 
open  to  the  scrutiny  of  the  examiners  and  to  the  fair  criticism 
of  the  newspaper  press. 

To  this  end  the  communications  and  actions  of  the  examining 
board  in  the  legitimate  discharge  of  their  duties,  exercised  in 
good  faith  and  reasonably,  are  privileged  and  should  be  fully 
protected.      So   any   inquiries   or   communications   made   by   a 


J  Code,  sec.  7829. 


LIBEL.   AND   SLANDER. 


1739 


member  of  a  school  board  in  the  honest  and  faithful  discharge 
of  his  duties,  to  enable  him  to  act  advisably  in  respect  to  the 
qualifications  of  the  plaintiff  as  a  teacher,  and  in  respect  to 
the  certificate  he  held,  or  in  respect  to  an  expected  examination 
for  certificate,  should  be  fully  protected,  unless  he  went  beyond 
the  domain  of  reasonable  official  conduct.  And  this  protection 
should  extend  in  this  case  to  communications  made  to  the  state 
board  of  examiners. 

You  are  also  instructed  that  if  he  found  a  teacher  teaching 
in  the  public  schools  without  a  certificate,  that  if  would  be 
proper  for  him  to  call  the  attention  of  the  board  of  education 
of  the  proper  township  to  that  effect.  But  it  was  no  part  of  his 
official  duty  to  publish  in  the  newspapers  of  and  concerning  the 
plaintiff,  any  matter  or  thing  implying  praise  or  demerit,  or 
respecting  teachers  or  applicants  for  certificates.  If  he  does  so 
he  does  it  at  his  peril,  as  if  he  sustained  no  official  relation  to 
the  public.  His  acts  in  that  respect  would  be  determined  from 
the  same  standard  as  that  applied  to  any  unofficial  person.  In 
this  respect  he  stands  on  the  same  footing,  and  incurs  the  same 
liability,  that  private  persons  do,  but  in  the  legitimate  discharge 
of  his  official  duties,  exercised  in  good  faith  and  upon  reasonable 
grounds,  his  communications  are  privileged. 

A  teacher  or  a  candidate  for  examination  as  such,  comes 
before  the  board  of  examiners  with  his  habits  and  associations, 
mental  and  moral  qualifications,  in  fact  his  whole  character  open 
for  their  careful,  intelligent  scrutiny;  the  board  could  not  dis- 
charge its  official  duties  unless  the  door  was  open  to  them  to 
enter  upon  a  careful,  and,  where  character  is  called  in  question, 
a  searching  inquiry  as  to  the  qualifications  of  the  teacher  or 
candidate.  To  this  end,  not  only  must  freedom  of  inquiry,  dis- 
cretion, and  communication  be  had  as  to  all  reasonable  means  of 
information,  but  there  must  be  exemption  afterwards  from 
liability  for  words  written  or  spoken  in  good  faith  and  in  the 
honest  belief  of  the  truth,  the  making  of  which,  if  true,  will  be 
justified  by  the  occasion,  though  it  should  turn  out  that  it  was 
untrue.     All  that  the  law   requires  in  such  cases  is  that  the 


1740  INSTRUCTIONS  TO  JURY. 

officers  should  act  in  good  faith  and  reasonably  under  the  cir- 
cumstances.2 

2  Voris,  J.,  in  Carrier  v.  Findley,  et  al.     As  to  privileged  cases,  see  Cooky 
on  Torts,   246    (210). 

Sec.  1965.     Libel — Reports  of  judicial  proceedings — Privilege. 

You  are  instructed  that  a  full,  fair,  and  impartial  report  of 
the  judicial  trial  had  in  open  court,  where  the  parties  interested 
have  an  opportunity  of  ascertaining  and  vindicating  their  rights, 
may  be  published  with  impunity,  providing  that  they  are 
unaccompanied  by  malicious,  defamatory  comment.  Reports 
of  judicial  proceedings  in  the  absence  of  express  malice,  if  fair, 
true,  and  accurate,  and  nothing  more,  are  privileged;  but  as 
soon  as  any  attempt  is  made  at  comment,  or  misstating  the 
truth,  the  privilege  is  lost.    *    *     * 

The  publication  complained  of  in  the  plaintiff's  petition 
purports  to  be  a  report  of  the  utterances  of  the  judge  of  the 
court  made  in  connection  with,  and  as  a  part  of,  the  judicial 
opinion  delivered  in  the  case  then  pending  in  court,  wherein 
this  plaintiff  was  plaintiff,  and  P.  D.  was  defendant.  Such 
matter,  if  fairly  and  truthfully  reported  and  published,  is 
privileged,  provided  it  was  done  without  malice  and  fairly 
stated  what  the  court  said  on  that  subject.  The  defendants  had 
the  right  to  publish  as  part  of  the  proceedings  of  the  trial  what 
the  court  said  in  delivering  its  opinion  and  deciding  the  case, 
provided  it  was  done  fairly  and  truthfully  and  without  malice. 
The  burden  is  upon  the  plaintiff  to  show  by  a  preponderance 
of  the  evidence  that  the  alleged  libelous  matter  contained  in  the 
publication  is  false.  It  must  appear  from  the  evidence  that  the 
court,  in  passing  and  delivering  its  opinion  in  the  case  of  D.  v.  D., 
did  not  express  the  opinion  attributed  to  it  in  the  publication 
complained  of,  or  that  it  did  not  fairly  and  truthfully  report 
the  case,  or  what  the  court  said  in  delivering  its  opinion,  before 
the  defendant  can  be  held  liable. 

The  fact  that  this  publication  was  a  report  made  through  a 
correspondent,  and  the  claim  that  the  correspondent  procured 


LIBEL   AND    SLANDER. 


1741 


the  statement  from  another  person,   in  no  manner  lessens  the 

wrong    of    the    defendant    for    the    words    which    are    libelous, 

malicious,  and  untrue.1 

i  Gillmer,  J.,  in  Doyle  v.  Scripps  Pub.  Co.,  Trumbull  Co.  Com.  Pleas. 
As  to  privileged  communications,  see  charge  in  10  O.  S.  549; 
Cooley  on  Torts,  246  (210)  et  seq.  Where  the  answer  claims  tbe 
publication  to  be  privileged,  and  issue  is  joined  thereon,  whether 
or  not  the  same  is  privileged  is  for  the  jury  under  proper  instruc- 
tions. Post  Pub.  Co.  v.  Moloney,  50  O.  S.  71.  Whether  the  facts 
which  render  the  publication  privileged  are  established  by  the 
evidence  is  a  question  for  the  jury.     Id.  85. 

Sec.  1966.     Libel — Publication  from  report  of  examining  com- 
mitee  of  county  treasurer. 

If  you  find  that  the  extracts  so  published  were  parts  of  a 
public  record,  and  you  should  also  find  that  the  same  were 
published  from  good  motives  and  for  justifiable  ends,  the  defend- 
ant would  have  the  right  to  publish  the  same  and  the  law  would 
protect  him  in  that  right ;  and  in  determining  the  motives  of  the 
defendant,  you  should  consider  all  the  evidence  before  you, 
including  the  report  itself,  which  is  in  evidence,  and,  if  there 
were  portions  of  this  report  which  were  exculpatory  in  their 
character,  and  these  were  omitted  by  the  defendant  in  the  pub- 
lication, you  may  consider  this  omission  in  determining  the 
motive  which  prompted  the  defendant  in  making  the  publications 
of  the  extracts  so  published  by  him.  *  *  *  The  defendant 
urges  that  the  matters  complained  of  were  based  upon  these 
extracts,  and  were  fair  and  proper  comments  thereon.  This  is 
denied  by  the  plaintiff,  and  this  brings  you  to  the  consideration 
of  the  language  complained  of  in  the  petition.  If  yon  have 
found  that  the  extracts  referred  to  were  parts  of  a  public  record, 
and  were  published  in  the  manner  and  for  the  purposes  stated, 
then  as  a  matter  of  law  the  defendant  would  have  the  right  to 
make  any  fair  and  proper  comments  upon  the  extracts  so 
published,  and  which  would  be  fairly  warranted  by  giving  to 
the  language  embodied  iii  the  extracts  its  fair  and  natural  import, 
signification,  and  meaning;  but  he  would  have  no  right  to  go 


1742  INSTRUCTIONS  TO  JURY. 

beyond  that  and  give  to  the  report  by  his  comments  a  meaning 
and  signification  not  warranted  by  the  language  used  in  the 
report.  And  if  in  such  a  publication  of  such  comments  in  the 
report  he  so  distorted  the  language  thereof,  or  the  natural  import 
and  meaning  of  that  report,  and  the  language  used  therein,  in 
such  manner  as  to  wrongfully  impute  to  the  plaintiff  malfeasance 
in  office,  or  charged  him  with  having  unlawfully  or  wrongfully 
appropriated  to  his  own  use  the  money  of  the  county  whilst  he 
was  in  office,  or  with  having  conspired  with  others  so  to  do,  and 
that  the  same  was  false,  and  you  so  find  from  the  evidence,  then 
the  publication  would  be  libelous  and  the  plaintiff  would  be 
entitled  to  recover.1 
i  Johnston,  J.,  in  McMaster  v.  Caldwell. 

Sec.  1967.     Comments  upon  report  made  with  good  motives, 
etc. 

But  if  the  defendant,  in  publishing  comments  upon  extracts 
from  the  report,  acted  from  good  motives  and  for  justifiable 
ends,  and  his  comments  thereon  were  fairly  warranted  by  the 
language  of  the  report,  then  the  defendant  would  be  justified  in 
so  publishing  such  comments,  and  the  plaintiff  would  not  be 
entitled  to  recover  in  this  action.  *  *  *  To  show  that  defend- 
ant published  such  comments  for  justifiable  ends  he  must  satisfy 
you  from  a  preponderance  of  the  evidence  that  the  same  was 
published  by  him  in  good  faith,  for  the  purpose  of  protecting 
the  interests  of  society  and  to  produce  purity  in  public  affairs, 
or  some  other  kindred  purpose,  whereby  the  general  welfare  of 
the  community  was  to  be  promoted,  and  if  you  are  so  satisfied, 
then  this  would  establish  the  fact  that  the  same  was  done  from 
good  motives,  and  this  would  constitute  a  defense  to  this  action.1 
i  J.  R.  Johnston,  J.,  in  McMaster  v.  Caldwell. 

Sec.  1968.     Statements  made  to  officer  in  discovering  crime, 
privileged. 

Statements  or  inquiries  made  to  an  officer  of  the  law  or  to 
others  for  the  purpose  of  discovering  a  crime  or  of  bringing  a 
guilty  person  to  justice   are  privileged   and  do  not   constitute 


LIBEL    AND    SLANDER.  1743 

slander,  provided  they  are  made  on  reasonable  grounds,  in  good 
faith,  honesty,  and  without  malice,  even  though  in  fact  they 
may  be  false  and  unfounded.  You  are,  therefore,  instructed, 
gentlemen,  that  you  can  not  in  your  deliberations,  for  the 
purpose  of  establishing  the  plaintiff's  charge  of  slander  against 
the  defendant,  consider  any  statement  or  statements  made  by 
the  defendant  to  the  police  officers  for  the  purpose  of  securing 
an  officer  with  respect  to  his  suspicions  that  plaintiff  had  stolen 
or  taken  from  his  residence  linen  or  other  articles  of  value, 
provided  such  statements  were  made  without  malice,  and  in  an 
honest  belief  in  their  verity,  and  were  also  made  for  the  purpose 
of  securing  the  assistance  of  the  officer  with  a  view  to  the  pro- 
motion of  justice.1 
i  Pugh,  J.     Lennon  v.  Rice,  Franklin  Co.  Com.  Pleas. 

Sec.  1969.  Construction  of  words  and  understanding  of  mean- 
ing by  hearers. 
All  of  the  words  which  it  is  charged  the  defendant  uttered, 
having  been  spoken  in  one  conversation  at  one  time  and  place, 
they  must  be  construed  and  interpreted  together,  and  in  con- 
nection with  the  surrounding  circumstances.  To  constitute 
slander,  the  words  used  so  taken  and  construed  and  in  connection 
with  the  surrounding  circumstances  must  have  been  understood 
by  a  third  person  or  persons  who  heard  them,  if  there  were  such 
persons,  in  the  evil  sense  which  the  law  requires;  that  is,  as 
imputing  the  commission  of  a  crime.  Prima  facie,  they  will  be 
"presumed  to  have  been  understood  according  to  their  common 
import,  and  as  they  would  naturally  impress  the  minds  of  the 
hearers  or  as  the  defendant  meant  them."  Tt  is  a  question 
whether  the  words  used  by  the  defendant,  even  if  they  wen'  thus 
set  out  in  the  petition  or  their  equivalent,  are  not  ambiguous. 
Tf  they  are  of  doubtful  meaning,  and  do  not  fairly  and  reason- 
ably, when  taken  and  construed  together,  imply  that  the  plaintiff 
was  a  thief,  or  had  stolen  the  property,  it  can  not  be  said  that 
they  were  slanderous.1 
i  Pugh,  J.     Lennon  v.  Pice,  Franklin,  Co.  Com.  Pleaa. 


1744  INSTRUCTIONS  TO  JURY. 

Sec.  1970.     Effect  of  adding  excusable  words. 

If  the  words  uttered  by  the  defendant  meant  that  the  plaintiff 
committed  an  indictable  offense,  and  that  the  plaintiff  added  to 
these  words  that  the  plaintiff  was  irresponsible  mentally,  or 
insane,  or  words  to  that  effect,  these  words  taken  all  together 
do  not  constitute  slander ;  if  you  find  that  to  be  the  signification 
of  all  the  words  which  were  used  by  the  defendant,  then  you 
are  instructed  that  they  charge  merely  an  offense  which  was 
excusable.  To  charge  a  person  with  such  an  excusable  offense 
is  not  actionable  as  slander.1 

If  the  charge  of  a  crime  was  not  qualified  or  modified  by 
other  words  used  in  connection  therewith,  they  were  slanderous 
and  imputed  a  crime  of  a  serious  nature.  If  that  was  their 
import,  they  were  calculated  to  cause  great  injury  to  the  feelings 
and  reputation  of  the  plaintiff.  Indeed  the  law  deems  language 
which  imports  such  a  crime  when  spoken  in  the  hearing  of  a 
third  person,  or  persons,  as  defamatory,  as  actionable  in  itself, 
and  it  will  presume  as  the  court  and  jury  must  presume,  without 
any  proof,  that  the  plaintiff's  reputation  was  thereby  impaired.2 

i  The  court  said  in  this  connection  that  he  was  in  doubt  as  to  whether 
or  not  the  court  or  jury  should  pass  on  the  meaning  of  the  words 
set  forth  in  the  petition  or  proof,  but  finally  committed  the  matter 
to  the  jury. 

2  Pugh,  J.,  in  Lennon  v.  Rice,  Franklin  Co.  Com.  Pleas. 

Sec.  1971.     Libel — Meaning  of  words  for  jury. 

It  will  be  necessary  for  you  to  determine  from  the  letters 
themselves  whether  the  words  and  language  used  therein,  imput- 
ing to  the  plaintiff  that  he  has  been  guilty  of  any  crime,  fraud, 
dishonesty,  or  dishonorable  conduct,  or  which  have  a  tendency 
to  injure  him  in  his  office,  profession,  calling,  or  trade.  If 
you  find  from  the  evidence  that  the  language  used  in  said 
letters,  or  either  of  them,  is  such  as  to  fairly  and  properly 
charge  or  impute  to  said  plaintiff  that  he  has  been  guilty  of  any 
crime,  fraud,  dishonest,  or  dishonorable  conduct,  or  which  have 
a  tendency  to  injure  him  in  his  office,  profession,  or  calling, 


LIBEL   AND    SLANDER. 


1745 


then  they  are  libelous.    Whether  or  not  the  language  complained 

of   as    libelous    will   bear   the    meaning   ascribed    to    it    by    +he 

innuendo,  whether  such  was  the  meaning  intended,  is  a  question 

of  fact  for  the  jury.1 

i  Nye,  J.  Stevens  r.  McBride,  Summit  Co.  Com.  Pleas.  Whether  lan- 
guage will  bear  the  meaning  claimed  in  the  innuendo  is  a  ques- 
tion for  the  Court,  and  whether  that  moaning  was  intended  is  for 
the  jury.  State  v.  Smiley,  37  0.  S.  30;  Boyle  v.  State,  6  O.  C.  C. 
163;  Gohen  v.  Cincinnati  Volksblatt,  31  W.  L.  B.  Ill;  Dougherty 
v.  Miller,  W.  36;   Getchell  v.  Tailor's  Exchange,  26  W.  L.  B.  233. 


Sec.  1972.     Libel — Meaning  of  words. 

It  is  for  the  jury  to  determine  from  the  testimony  the  meaning 
of  the  words  which  are  charged  to  have  been  published  of  the 
plaintiff;  and  in  determining  their  meaning,  you  should  con- 
strue them  in  their  plain  and  ordinary  sense,  and  take  them  to 
mean  what  persons  of  ordinary  intelligence  would  take  them  to 
mean.1  Having  thus  determined  their  meaning,  you  should 
then  say,  was  that  meaning  such  as  was  reasonably  calculated 
to  injure  the  plaintiff's  reputation,  or  expose  him  to  ridicule, 
distrust,  contempt,  or  hatred.2 

i  Cassidy  v.  Brooklyn  Daily  Eagle,   13S  N.  Y.  239. 
2  Wright,  J.,  in  Horton  V.  Enquirer  Company. 

Sec.  1973.     Kinds  of  malice  in  slander. 

There  are  two  kinds  of  malice  that  may  enter  into  a  slander 
case.  They  are  malice  in  law,  sometimes  called  imputed  or  Legal 
malice,  and  actual  malice.  Legal  malice  does  not  mean  that  the 
defendant  had  actual  ill-will,  or  hatred,  or  a  feeling  «f  revenge, 
or  an  unfriendly  feeling  against  the  plaintiff.  Tf  the  slanderous 
words  were  spoken  voluntarily  and  without  legal  excuse,  they 
were,  in  the  eye  of  the  law,  spoken  maliciously.  The  law  pre- 
sumes a  wrongful  intention — malice — when  the  words  are  shown 
to  have  been  uttered  without  justification. 

Legal  malice  may  be  presumed  without  direct  proof.  Without 
evidence  legal  malice  is  inferred   when  the  slanderous  words 


1746  INSTRUCTIONS  TO  JURY. 

were  not  spoken  on  a  justifiable  occasion.  If  the  words  were 
spoken  on  a  justifiable  action,  for  instance,  to  an  officer  or  others 
for  the  purpose  of  ascertaining  about  a  supposed  crime,  if 
there  was  a  legal  excuse  for  speaking  them,  legal  malice  can 
not  be  inferred. 

Actual  malice  signifies  actual  ill-will,  hatred,  revenge,  jealousy, 
and  the  like.  This  kind  of  malice  must  be  proved  as  any  other 
fact  is,  by  evidence.  The  law  does  not  presume  it,  and  the 
jury  can  not  infer  it  without  evidence  to  warrant  such  an 
inference. 

To  entitle  the  plaintiff  to  recover  compensatory  damages,  it 
is  not  necessary  that  she  should  prove  that  the  defendant  was 
actuated  by  actual  malice  in  speaking  slanderous  words.1 
i  Pugh,  J.,  in  Lennon  v.  Rice,  Franklin  Co.  Com.  Pleas. 

Sec.  1974.    Damages — Kinds  of. 

The  question  of  damages  will  have  to  be  considered  by  you  in 
case  you  find  for  the  plaintiff  upon  all  the  issues.  There  are 
two  kinds  of  damages — compensatory  and  exemplary  or  positive 
damages.  The  object  of  the  law  in  allowing  the  first  kind  of 
damages  is  to  make  the  plaintiff  whole  for  outraged  feeling  and 
for  the  injury  to  his  character  or  reputation,  whereby  he  was 
compelled  to  appear  in  one  of  the  tribunals  of  his  country  and 
vindicate  his  character  against  aspersions  upon  him.  If  the 
evidence  discloses  that  the  defendant  spoke  the  words  set  out 
in  the  petition,  or  words  substantially  like  them  in  meaning, 
that  he  spoke  them  in  the  hearing  of  a  third  person,  or  persons, 
that  he  uttered  them  maliciously,  in  the  sense  of  legal  malice, 
and  if  you  find  that  there  are  no  mitigating  circumstances,  then 
he  is  entitled  to  such  compensatory  damages  as  in  your  judg- 
ment will  make  him  whole  for  the  injury  to  his  reputation,  and 
for  outraged  feelings,  and  including  also  a  reasonable  attorney's 
fee  for  prosecuting  this  suit. 

It  is  true  that  there  is  no  arithmetical  standard  for  com- 
puting these  damages.  Character  has  no  price  in  the  market 
as  property  has,  by  which  the  damages  can  be  measured.     It 


LIBEL   AND    SLANDER.  1747 

may  not  be  easy  to  say  what  the  damages  are,  but  that  does  not 
relieve  the  jury  from  ascertaining  and  declaring  what  they  are 
if  the  injury  has  been  to  the  plaintiff.  Of  course  it  is  not  the 
idea  of  slander  suits  that  the  plaintiff  is  to  make  money  or  to 
speculate  upon  his  reputation.  Much  is  left  to  your  sound 
judgment  and  discretion  acting  upon  the  evidence,  and  there  is 
nothing  that  the  court  can  say  that  will  aid  you.  It  is  for  you 
to  say  how  much  the  plaintiff's  reputation  has  been  damaged. 
In  estimating  the  damages  it  is  your  duty  to  take  into  con- 
sideration mitigating  circumstances,  if  any  have  been  proved. 
If  the  words  were  not  spoken  with  actual  malice,  personal  ill- 
will,  hatred,  or  some  such  feeling,  you  can  only  allow  com- 
pensatory damages.  But  if  you  find  that  the  alleged  slanderous 
words  were  uttered  with  actual  malice,  then  you  may  add 
exemplary  damages.  The  whole  are  assessed,  if  at  all.  on  the 
ground  of  public  policy,  and  not  because  the  plaintiff  has  any 
right  to  the  smart  money,  as  it  is  often  called.  The  object  of 
the  law,  as  the  term  implies,  is  to  punish  the  wrong-doer  in 
dollars  and  cents,  and  to  give  a  warning  to  prevent  a  repetition 
of  the  wrong  or  a  similar  wrong  by  others.  The  amount  is  left 
to  your  judgment.1 

iFrom  Lennon  v.  Rice,  Franklin  Co.  Com.  Pleas.  Pugh,  J.  Compensatory 
damages  cover  injury  to  feelings,  loss  of  business,  expenses  in  vindi- 
cating character,  1  Disney,  482;  mental  suffering  from  loss  of 
reputation,  21  W.  L.  B.  292. 

Sec.  1975.     Damages  in  libel  per  se — When  testimony  rebuts 
legul  malice. 

The  only  question,  therefore,  gentlemen  of  the  jury,  to  lie 
submitted  to  and  determined  by  you  is  the  ;i mount  of  damages 
to  be  assessed  against  the  defendants  for  the  libel.    The  evidence 

offered    here    which    lends    to   show   actual    malice   on    the    pari    of 

J.  C.  J.,  who  was  the  editor*,  and  wrote  the  article,  can  not  in 
law  be  considered  as  against  the  other  defendants,  or  any  of 
them.  The  uncontradicted  testimony  of  the  defendants,  con- 
clusively shows  that  they  entertained  no  actual  ill-will  or  malice 


1748  INSTRUCTIONS  TO  JURY. 

toward  the  plaintiff.  This  rebuts  the  legal  malice  which  is 
presumed  to  follow  from  the  libel  complained  of,  because  of  its 
being  libelous  per  se. 

The  plaintiff  is  entitled  to  the  verdict  of  the  jury  in  this  case 
for  compensatory  damages  only.  The  article  being  libelous 
per  se,  the  law  presumes  that  the  plaintiff  has  suffered  damages 
from  the  publication  thereof,  without  proof  of  any  actual  damage 
by  him  suffered. 

It  has  been  stated  to  you,  gentlemen,  in  argument,  that  no 
proof  has  been  made  of  any  actual  injury,  by  loss  of  any  friends, 
or  that  he  was  discharged  from  the  army.  You  must  not  be 
misled  by  such  argument,  because,  as  I  have  stated  to  you,  the 
plaintiff  is  entitled  to  damages  without  proof  of  any  actual 
damage.  By  this  is  meant  that  because  of  this  libelous  article 
the  plaintiff  has  been  damaged  in  his  reputation  in  a  way  which 
can  not  be  measured  in  dollars  and  cents  as  property  can  be 
measured. 

The  jury  are  therefore,  as  I  have  already  stated,  instructed 
and  required  to  render  a  verdict  in  favor  of  the  plaintiff,  and 
against  the  defendants  whom  I  have  named,  and  you  will  assess 
such  damages  as  in  your  best  judgment  you  deem  proper  and 
right,  taking  into  consideration  all  the  facts  and  circumstances 
as  developed  by  the  evidence.  The  amount,  that  shall  be  awarded 
to  the  plaintiff  is  committed  to  the  sound  discretion  of  the  jury. 
The  court  can  only  direct  the  jury  as  to  the  elements  of 
damages  which  may  be  legally  considered:  First.  The  jury 
should  consider  the  age  of  the  plaintiff;  his  family,  and  social 
relations.  Second.  You  should  consider  his  occupation  and  his 
official  position,  taking  into  consideration  the  effect  of  the  libelous 
article  had  upon  him  in  that  capacity.  Third.  You  should 
consider  the  question  of  whether  or  not  the  plaintiff  suffered 
mental  anguish  or  distress.  Fourth.  You  are  required  by  law 
to  include  in  your  verdict  reasonable  attorneys'  fees  to  com- 
pensate him  for  the  expense  incurred  in  the  prosecution  of  this 
case.  In  determining  the  amount  included  in  your  verdict  by 
way  of  attorneys'   fees,  you  will  take  into  account  the  labor 


LIBEL   AND   SLANDER.  1749 

incurred  and  the  amount  of  time  spent  in  the  trial.  You  may 
also  in  assessing  the  damages  consider  the  standing  of  the 
defendants;  not  for  the  purpose  of  enhancing  the  damages 
because  of  any  wealth  that  they  may  have  had,  but  you  may 
only  consider  that  by  way  of  determining  the  weight  of  their 
opinion,  as  reflecting  upon  the  damages  that  the  plaintiff  may 
have  suffered.  The  aim  and  purpose  of  awarding  compensatory 
damages  is  to  merely  compensate  the  injury,  and  not  to  enrich 
the  party.  Your  verdict  should  not  be  influenced  in  the  slightest 
degree  by  any  feelings  of  prejudice  against  or  in  favor  of  any 
of  the  parties  in  this  action  by  reason  of  any  work  in  which  they 
are  engaged.  Settle  this  matter  fairly  and  honestly,  as  your 
conscience  impels  you,  to  do  right,  so  that  the  scales  of  justice 
may  evenly  balance.1 
i  Reeve  v.  Wheeler,  et  al,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  1976.  Libel— Counsel  fees  allowed  in  compensatory 
damages. 
"If  the  defendants  published  a  paper  in  manner  and  form 
as  alleged,  and  injury  resulted  to  the  plaintiff  from  and  by 
reason  of  such  publications,  he  will  be  entitled  to  recover  such 
damages  as  he  has  directly  sustained;  and  in  estimating  com- 
pensatory damages  the  jury  may  take  into  consideration  and 
include  reasonable  fees  of  counsel  employed  by  the  plaintiff  in 
the  prosecution  of  his  action.  If  the  publication  was  made  with 
a  bad  motive  or  Avicked  intention,  the  jury  may  go  beyond  mere 
compensation  and  award  vindictive,  or  punitive  damages— that 
is,  damages  by  way  of  punishment."  1 

i  From  Finney  v.  Smith,  31  O.  S.  r>20.     Costs  in  clearing  up  the  charge 
may  be  included,  W.  316;    1  Disney,  482. 

Sec.  1977.    Extent  to  which  libel  is  published  as  affecting 

damages. 

The  extent  to  which  a  libel  is  published  may  affect  the  amount 

of  damages  for  injury  done.    Tf  the  libel  is  published  to  a  large 

number  of  persons,  and  in  a  public  place,  that  would  have  a 


1750  INSTRUCTIONS  TO  JURY. 

tendency  to  cause  a  person  against  whom  the  libel  is  published 
more  injury  than   if  published  to   a  single   person  and  in  a 
private  house.1 
i  Nye,  J.,  in  Stevens  v.  McBride,  Summit  Co.  Com.  Pleas. 

Sec.  1978.    What  constitutes  libel  to  one  in  his  business. 

A  libel  consists  in  the  abuse  of  that  constitutional  right  by 
maliciously  writing  or  printing,  of  and  concerning  another,  any 
language  or  representation  which  is  false  and  the  natural 
tendency  and  effect  of  which  are  to  injure  such  other  person, 
as  in  this  case,  in  his  business  standing  and  reputation  in  the 
community  where  he  lives  and  is  known,  or  in  his  trade  or 
business,  and  hold  him  up  to  ridicule  or  contempt,  or  in  any 
way  to  lessen  him  in  public  esteem. 

It  will  be  your  duty  to  take  the  article  submitted  in  evidence, 
read  it  carefully  as  a  whole  and  in  detail,  and  decide  as  men 
of  judgment  and  experience  whether,  as  contended  by  the  plain- 
tiff, it  had  such  a  tendency  and  effect,  or  any  of  them,  so  far 
as  the  business  reputation  of  the  plaintiff  or  his  calling  or  his 
trade  are  concerned,  or  whether,  on  the  other  hand,  as  claimed 
by  the  defendant,  it  can  not  be  fairly  said  to  have  had  such 
tendencies  or  effect,  or  any  of  them. 

If  in  your  judgment  the  publication  of  the  article  had  no 
such  tendencies  or  effect  as  have  been  mentioned,  it  will  be 
your  duty  to  return  a  verdict  for  the  defendant  without  pro- 
ceeding further  in  the  case. 

If,  however,  by  reason  of  the  publication  of  the  article,  you 
should  find  that  the  plaintiff  was  injured  in  his  reputation  and 
trade,  and  has  suffered  a  diminution  of  his  business  as  a  retail 
clothier,  and  has  been  otherwise  injured  in  his  business  reputa- 
tion, then  your  verdict  must  be  for  the  plaintiff,  because  it  is 
a  presumption  of  law  that  anything  stated  in  such  publication 
which  is  derogatory  to  the  business  reputation  and  trade  of  the 
plaintiff  as  alleged  is  false,  and  the  law  further  presumes  that 
the  defendant,  in  publishing  the  same,  intended  to  cause  what- 


LIBEL   AND    SLANDER.  1751 

ever  injury  naturally   would  and  did   result    from  such   publi- 
cation.1 

i  From  Cincinnati  Times-Star  Co.  v.  Kalin.     Judgment  affirmed    (in  favor 
of   Kahn),  52   0.    S.   662. 

Sec.  1979.     Measure  of  damages  to  one  in  his  business. 

It  will  be  your  duty  next  to  consider  whether  your  verdict,  if 
for  the  plaintiff,  shall  be  for  nominal  or  for  substantial  damages. 
In  this  connection  it  will  be  necessary  to  determine  whether, 
under  all  the  circumstances  disclosed  by  the  evidence,  the 
plaintiff  has  suffered  a  real  and  substantial  injury  to  his  trade 
or  business  reputation,  or  whether  he  has  suffered  only  what  is 
termed  in  law  as  a  nominal  injury.  Nominal  damages  may  be 
presumed  from  the  publication  of  libelous  matter,  but  the 
question  of  the  amount  of  such  nominal  damages  must  be  left  to 
the  good  judgment  of  the  jury  to  be  exercised  upon  all  the 
evidence.  The  amount  awarded  for  nominal  damages  must 
rest  in  the  sound  discretion  of  the  jury  and  may  not.  exceed 
one  cent. 

The  plaintiff  contends  that  he  has  been  greatly  injured  in 
his  business  reputation,  and  has  lost  a  large  number  of  customers, 
and  has  suffered  a  diminution  cf  his  business  to  a  great  extent 
and  has  been  otherwise  injured  in  his  reputation.  If  you  find 
that  the  plaintiff  has  in  fact  not  suffered  any  real  or  substantial 
injury  in  these  respects,  he  is  entitled  to  nominal  damages  only 
to  vindicate  his  right. 

If  the  plaintiff  suffered  real  or  substantia]  injuries,  as  alleged, 
then  he  is  entitled  to  receive  such  a  sum  as  in  your  judgment 
would  fairly  compensate  him  for  such  loss.  It  may  be  regarded 
as  settled  in  this  state  that  in  actions  of  tort  involving  malice, 
fraud,  insult,  or  oppression,  the  jury  may,  in  estimating  com- 
pensatory damages,  take  into  consideration  the  reasonable 
counsel  fee  of  the  plaintiff  in  prosecuting  this  action  for  the 
redress  of  his  injuries  againsl  the  wrong-doer,  even  when  there 
are  mitigating  circumstances  not  amounting  to  ;i  justification.1 

i  From  Cincinnati  Times-Star  Co.  v.  Kahn.     Judgment  affirmed    (in  favor 
of   Kahn),  52  0.   S.   662. 


1752  INSTRUCTIONS  TO  JURY. 

Sec.  1980.  Same,  continued — Character  and  extent  of  busi- 
ness, and  business  reputation  to  be  consid- 
ered. 

In  order  that  you  may  pass  intelligently  upon  this  question  of 
damages,  if  any  damages  are  to  be  awarded,  it  will  be  proper  for 
you  to  consider  the  character  and  extent  of  the  business  in 
which  the  plaintiff  was  engaged,  as  well  as  his  previous  reputa- 
tion in  such  trade  or  business.  The  extent  of  an  injury  to  one 
in  his  trade  or  business,  or  in  his  reputation  in  relation  to  such 
trade  or  business,  must  depend  partly  on  the  nature  of  the 
publication  itself  and  partly  on  the  character  and  extent  of  his 
business  or  trade.  For  instance,  a  man's  reputation  in  business 
may  be  so  good  as  to  be  firmly  established  in  public  confidence 
so  that  it  can  not  well  be  injured  by  any  such  publication  as 
that  of  which  the  plaintiff  complains ;  or  it  may  be  so  bad  as  to 
be  incapable  of  serious  injury  therefrom ;  or,  while  good,  yet 
not  so  firmly  established  in  public  esteem  as  to  prevent  injury 
resulting  to  it.  The  law  presumes  every  man's  reputation  as  a 
tradesman  to  be  good  until  the  contrary  is  made  to  appear.  The 
testimony  on  that  subject  must  be  carefully  weighed  and  con- 
sidered. If  you  find  the  publication  a  libel,  as  the  term  has  been 
defined,  it  will  be  left  to  you  after  all  to  say  to  what  extent, 
under  all  the  circumstances  and  evidence,  his  reputation  in 
business  has  been  damaged  thereby,  and  to  what  extent  he  has 
been  damaged  in  his  trade  and  business,  subject  only  to  the 
propositions  of  law  which  have  been  suggested  by  the  court. 

A  man's  known  reputation  in  the  community,  or  general 
estimation  in  which  he  is  held  in  the  business  community  where 
he  lives  and  moves  and  is  known,  wbile  it  is  the  resultant  of  the 
opinion  of  all,  it  is  not  the  individual  opinion  of  any  particular 
person  or  persons.  You  will  decide  what  the  known  reputation 
of  the  plaintiff  was  at  the  time  of  this  publication,  for  in  view 
of  all  the  evidence  you  are  limited  to  his  business  reputation, 
and  you  can  not  go  into  particular  acts.1 

i  From  Cincinnati  Times-Star  Co.  v.  Kahn.     Judgment  affirmed,  52  O.  S. 
662. 


LIBEL   AND   SLANDER.  1753 

Sec.  1981.  Same,  continued — Effect  of  absence  of  malice — 
Mitigating  circumstances — Effect  of  acting 
upon  fairly  reliable  information. 

There  is  no  way  of  reaching  a  correct  conclusion  in  cases  like 
the  one  on  trial  except  through  the  good  judgment  of  the  jury. 
The  law,  therefore,  permits  the  jury  to  take  such  a  view  of  all 
the  facts  and  circumstances  properly  in  evidence  in  the  assess- 
ment of  damages  and  as  may  appear  fairly  from  the  preponder- 
ance of  the  evidence.  If  may  appear  to  you  that  the  publication 
complained  of  was  made  only  with  such  malice  as  the  law  implies 
from  the  mere  doing  of  a  wrongful  act,  which  is  recognized 
in  the  law  as  ' '  implied  malice ; "  or  with  an  actual  evil  intent  or 
express  purpose  to  injure;  or  that  it  was  not  only  false,  but 
known  to  be  so  by  the  defendant  at  the  time  of  the  publication 
itself,  or  wantonly  made  without  inquiry  or  information  upon 
which  the  defendant  was  fairly  justified  in  relying;  or  that  there 
was  nothing  in  the  character,  conduct,  or  position  of  the  plain- 
tiff to  palliate  or  excuse  such  publication.  It  may  appear  to 
you,  on  the  contrary,  that  while  the  defendant  may  not  convince 
you  that  he  should  escape  the  actual  consequences  of  the  alleged 
libelous  matter,  if  wrongful  in  fact,  yet  there  was  no  actual 
malice  on  the  part  of  the  defendant,  no  real  or  conscious  intent 
to  injure,  no  bad  motive ;  that  though  in  fact  false,  the  defendant 
in  making  the  publication  acted  upon  information  on  which 
he  was  fairly  justified  in  relying;  that  there  was  more  or  less 
truth,  or  a  greater  or  less  approach  to  the  truth  in  this  publica- 
tion, or  that  there  was  something  in  the  business  reputation  of 
the  defendant,  or  in  the  methods  of  doing  business,  or  in  the 
character  of  the  business  itself,  or  in  any  reports  which  may 
have  existed  in  police  circles,  or  in  the  letter  as  introduced  in 
evidence — any  such  information  may  have  reached  the  defend- 
ant j>rior  to  the  publication  itself — to  palliate  in  a  greater  or 
less  degree,  or  excuse  in  a  greater  or  less  measure,  the  publi- 
cation itself. 

In  case  you  find  all  or  any  of  the  circumstances  last  mentioned 
to  have  existed,  while  they  do  not  make  out  a  complete  defense 


1754  INSTRUCTIONS  TO  JURY. 

to  entitle  the  defendant  to  a  verdict,  if  you  first  find  the  publi- 
cation in  fact  to  be  libelous,  they  are  yet  matters  which  you  have 
a  like  discretion  to  consider  and  diminish  your  assessment  of 
damages  accordingly,  in  case  you  award  damages  to  this  plain- 
tiff at  all.  These,  in  legal  definition,  are  termed  mitigating 
circumstances. 

In  ascertaining  whether  there  were  mitigating  circumstances, 
or  whether  there  were  aggravating  circumstances,  it  will  be 
proper  for  you  to  consider  all  the  evidence,  direct  and  circum- 
stantial, in  order  that  you  may  reach  a  correct  conclusion.  It 
is  the  province  of  the  court  to  instruct  you  of  the  law ;  it  is  the 
province  of  the  jury  to  analyze  and  weigh  the  evidence.  It  is 
the  province  of  the  court  to  pass  upon  the  competency  of  the 
testimony;  it  is  the  province  alone  of  the  jury  to  weigh  that 
testimony.1 

2  From  Cincinnati  Times-Star  Co.  v.  Kahn.  Judgment  affirmed,  52  0.  S. 
662. 

Sec.  1982.    Measure  of  damages — Effect  of  agreement  to  ac- 
cept retraction  of  publication. 

The  defendant  in  its  amended  answer  pleads  as  a  second 
defense  that  an  agreement  was  entered  into  by  the  plaintiff  and 
defendant  through  counsel.  It  is  a  good  defense  to  an  action 
for  libel  that  if,  after  the  publication,  the  plaintiff  agreed  with 
the  defendant  to  accept  the  publication  of  an  apology  in  full 
for  his  cause  of  action,  and  that  such  an  apology  had  been 
publivshed.  The  burden  of  proof,  however,  in  a  defense  such  as 
is  alleged  in  the  amended  answer,  is  upon  the  defendant  to 
show  that  such  an  agreement  was  made,  and  that  there  was  a 
good  consideration  for  the  same,  and  that  it  was  carried  out  in 
good  faith,  and  that  the  plaintiff  so  agreed  to  accept  such  retrac- 
tion in  full  satisfaction  of  any  claim  which  he  may  have  had 
by  reason  of  the  publication.  The  evidence  on  this  point  must 
be  governed  by  the  proposition  of  the  law  as  I  have  indicated  it.1 

i  From  The  Cincinnati  Times-Star  Co.  v.  Kahn.  Judgments  affirmed  (in 
favor  of  defendant  in  error),  52  0.  S.  662.  An  offer  to  retract 
may  be  shown   in  mitigation.     Newell,  Def.  p.   907,   144  N.  Y.   144. 


LIBEL   AND   SLANDER.  1755 

Sec.  1983.     Slander  of  candidate  for  office. 

There  has  been  testimony  submitted  for  your  consideration 
tending  to  prove  that  whatever  the  defendant  did  say  of  the 
plaintiff  and  his  business  was  said  of  him  as  a  candidate  to  an 
elective  office,  and  in  commenting  on  the  character  of  his  fitness, 
abilities,  and  qualifications  for  the  office  |or  which  he  was  a 
candidate.  A  candidate  for  office  puts  the  character  of  his 
fitness,  abilities,  and  qualifications  in  issue.  His  conduct  and 
acts,  whatever  they  may  be,  may  be  freely  commented  on  and 
boldly  censured,  and  statements  made  of  a  candidate  for  office 
in  good  faith  by  a  voter,  when  made  by  one  who  has  a  reasonable 
ground  to  believe  them  true,  and  does  so  believe  them  to  be  true, 
are  privileged,  and  no  recovery  can  be  had,  unless  the  proof 
clearly  shows  them  to  have  been  maliciously  made ;  but  malicious 
defamatory  assaults  on  his  private  character,  falsely  imputing 
to  him  crime,  can  not  be  justified  on  the  ground  of  criticism, 
nor  claimed  to  be  privileged.  The  character  and  reputation  of 
a  person  who  is  a  candidate  for  office  is  as  sacred  then  as  at  any 
other  time,  and  if  one  without  probable  cause  states  what  is 
false  and  aspersive,  he  is  liable  therefor,  as  falsehood  and  the 
absence  of  probable  cause  amount  in  law  to  proof  of  malice. 

You  will  therefore  carefully  examine  all  the  testimony  before 
you,  that  you  may  know  all  the  circumstances  and  conditions 
under  which  the  words  were  spoken  by  the  defendant,  should 
you  find  they  were  spoken  by  him,  the  motive,  object,  and 
purpose,  if  any,  he  had  in  speaking  them,  and  if  you  find  such 
statements  to  have  been  made  in  good  faith  by  him  about  the 
plaintiff  as  a  candidate  for  office,  that  at  the  time  he  so  made 
them  he  had  a  reasonable  ground  to  believe  them  to  be  true,  and 
did  so  believe  them  to  be  true,  then  such  statements  would  be 
privileged  and  your  verdict  will  be  for  tbe  defendant.1 

i  J.  L.  Oeene,  J.,  in  Nichols  v.  Fenn.  51   O.  S.  5Rh.     Judgment  affirmed. 

A  newspaper  may  discuss  properly  the  habitfl  ami  qualifications  of  a 
candidate  for  office.  Hunt  v.  Bennett,  19  \.  Y.  173;  Stat.'  r. 
Balch,  31  Kan.  465.  Tt  will  ho  liahle  if  it  makes  a  false  accusa- 
tion of  crime.     Bronson  v.  Bruce,  59  Mich.  467. 


1756  INSTRUCTIONS  TO  JURY. 

Sec.  1984.     Libel  against  one  in  his  business  as  a  bricklayer 
and  contractor — By  a  bricklayer's  union. 

It  is  libelous  to  falsely  and  maliciously  charge  a  journeyman 
bricklayer,  who  holds  himself  out  as  capable  of  such  service  and 
seeking  employment,  to  be  an  inferior  workman,  and  it  is  likewise 
libelous  to  falsely  and  maliciously  charge  one  who  holds  him- 
self out  as  a  bricklaying  contractor  (capable  and  seeking  such 
contract  work  as  his  occupation  and  business),  as  being  a 
contractor  who  employs  inferior  bricklayers  to  do  his  work 
and  thereby  imposes  on  the  owners  of  buildings  for  whom  he 
does  wrork  as  such  contractor. 

The  law  presumes  the  reputation  of  plaintiffs  to  be  good  in 
respect  to  their  trade  or  profession,  and  that  they  employ  men 
who  have  the  usual,  ordinary  skill  of  the  trade  they  are  serving 
in,  until  the  contrary  appears  in  proof. 

If  you  find  that  the  defendants  did  in  fact  maliciously  issue 
and  distribute  this  circular,  that  it  is  false  as  to  the  essential 
charge,  that  tbe  plaintiffs  employed  "inferior  labor"  and 
"inferior  bricklayers,"  then  the  plaintiffs  are  entitled  to  recover 
damages  therefor. 

The  law  authorizes  you  to  assume  that  when  one  makes  a 
false  and  libelous  charge  against  another,  which  tends  to  do 
him  an  injury,  he  did  so  in  malice. 

The  defendants  have  offered  proof  as  to  the  character  of  some 
of  the  work  done  by  plaintiffs  and  their  men  before  the  issuing 
and  distribution  of  the  circular,  which  was  not  admitted  to 
prove  the  truth  of  the  circular  because  they  did  not',  by  their 
answer,  make  issue  as  to  its  truth,  but  it  was  admitted  and  is 
competent  and  proper  to  be  considered  as  to  the  motive,  malice, 
if  any,  on  good  faith  they  had  in  issuing  and  distributing  the 
circular.  If  they  honestly  knew  or  had  heard  of  said  work,  and 
believed  in  good  faith  that  it  was  inferior  work,  and  work  caused 
by  plaintiffs  employing  inferior  workmen,  then  you  should 
consider  that'  fact  as  in  mitigation  of  damages. 

If  the  jury  find  for  plaintiffs  on  the  proof  according  to  the 
law  as  I  have  stated  it,  you  should  give  such  verdict  as  will 


LIBEL   AND   SLANDER.  1757 

fairly  and  justly  compensate  them  for  the  injury  issuing  and 
distribution  of  such  libelous  charge  reasonably  caused  them  as  to 
their  reputation,  in  respect  to  their  trade  and  occupation,  and 
for  such  annoyance  and  distress  of  mind  as  they  may  have 
suffered  in  consequence  of  such  publication. 

And  if  you  find  there  was  malice  in  the  purpose  and  act  of 
the  publication,  you  may  also  include  in  the  verdict  what  you 
estimate  as  reasonable  attorney  fees  for  prosecuting  this  cause 
of  action. 

And  if  the  publication  was  done  in  such  excessive  degree  of 
malice  as  that,  in  your  judgment,  compensatory  damages  are 
not  a  sufficient  loss  and  punishment  for  the  act  done,  then  you 
may  include  in  your  verdict  also  such  sum  of  money  as  you 
consider  just  to  be  recovered  in  the  name  of  the  plaintiffs  for 
their  benefit,  as  by  way  of  a  punishment  of  defendants,  and  to 
prevent  a  repetition  of  like  publication. 

But,  gentlemen  of  the  jury,  have  a  care  that  your  verdict 
in  this  respect  is  just  and  reasonable,  remembering  that  the 
law  entrusts  you  with  a  large  discretion  in  this  respect.  As 
punitive  damages  you  can  allow  nothing,  or  whatsoever  sum 
you  deem  just. 

On  this  question  as  to  motive,  malice,  and  the  degree  of  it, 
consider  all  the  facts  in  proof,  including  the  original  controversy 
of  the  parties  and  the  matters  between  them  occurring  prior  to 
the  publication  of  this  circular.1 

i  Morris  L.  Buchwalter,  J.,  in  P.ricklayeis'  Union   V.  Parker. 

An  agreement  between  a  number  of  persons  not  to  work  for  a  certain 
manufacturer,  with  a  view  to  oppress  or  disable  him  in  his  busi- 
ness, or  constrain  him  to  submit  to  rules  in  its  conduct,  is  unlawful. 
Tie  lias  a  right  to  manage  his  own  affairs  without  interference  from 
others  according  to  his  own  will  and  discretion. 

The  following  authorities  sustain  plaintiff's  right  to  damages  for  the 
conspiracy  <<>  destroy  their  business,  and  to  an  injunction  against 
a  repetition  of  the  wrongs  complained  of,  and  show  that  the 
trial  court  committed  no  error  against  the  defendants  below,  either 
in  its  general  charge  or  refusal  of  special  charges.  Crump  v. 
Commonwealth,  84  Va.  027:  Baughman  v.  Richmond  Typo.  Union, 
Va.  Law  Journal,  April  1HS7;  S.  C.  24  Central  L.  .1.  289;  Carew 
v.    Rutherford,    106    Mass.    1;    Walker   v.    Cronin,    1<»7    Mass.    55*; 


1758  INSTRUCTIONS  TO  JURY. 

Sherry  v.  Perkins,  147  Mass.  212;  State  v.  Donaldson,  32  N.  J. 
Law,  151;  Van  Horn  v.  Van  Horn,  52  N.  J.  Law,  284;  State  v. 
Stewart,  59  Vt.  273;  State  v.  Glidden,  55  Conn.  46,  approved  20 
Irish  Law  Times,  305;  Mapstrick  v.  Ramge,  9  Neb.  390;  Brace 
v.  Evans,  3  Ry.  and  Corp.  L.  J.  561;  Old  Dominion  Steamship 
Co.  v.  McKenna,  30  Fed.  Rep.  48;  Emack  v.  Kane,  34  Fed.  Rep. 
47;  Casey  v.  Typographical  Union,  45  Fed.  Rep.  135;  Coeur 
D'Alene,  etc.,  Min.  Co.  v.  Miner's  Union,  51  Fed.  Rep.  260 ;  Toledo 
etc.,  Ry.  Co.  v.  Penna.  Co.,  54  Fed.  Rep.  730,  746. 

Sec.  1985.     Same,  continued — Measure  of  damages. 

If  the  distribution  of  the  various  circulars  in  proof,  the  vari- 
ous calls  of  certain  of  the  defendants,  and  their  demands  upon 
the  materialmen,  were  part  of  a  combination  by  defendants  to 
coerce  the  plaintiffs  into  a  discharge  of  their  apprentice,  their 
brother,  and  the  other  non-union  men,  and  the  employment 
of  union  men,  against  their  will,  or  otherwise  with  the  intent 
to  impoverish  them  and  break  up  their  contracting  business, 
and  you  further  find  that  defendants  did  threaten  the  respective 
materialmen,  customers,  and  patrons  of  the  plaintiffs  with  injury 
to  their  property  by  loss  of  a  large  portion  of  their  trade  if  they 
refused  to  comply  with  defendants'  demand;  that  such  threat 
or  threats  did  reasonably  put  said  materialmen  in  fear,  and 
you  further  find  that  by  reason  thereof  defendants  did  intimi- 
date said  materialmen  so  as  to  cause  them  to  refuse  to  trade 
with  and  sell  to  the  plaintiffs,  or  caused  any  of  them  to  deal 
with  plaintiffs  on  different  conditions  and  terms  than  thereto- 
fore, to  the  damage  of  the  plaintiffs,  then  the  plaintiffs  are 
entitled  to  recover  such  damages  from  the  defendants. 

If  the  plaintiffs  are  entitled  to  recover  upon  each  of  the 
matters  separately  submitted  to  you,  your  verdict  should  be 
made  up  as  follows : 

For  inducing  workmen  to  quit  the  service  of  plaintiffs,  such 
damage,  under  all  the  proof,  as  fairly  compensates  them  for  the 
direct  loss  of  such  service.  That  loss  would  be  the  expense  and 
value  of  time  in  procuring  workmen  to  take  their  places,  dif- 
ference of  wages,  if  any,  shown  by  the  proof,  for  the  equivalent' 
service,  and  any  direct  damage  by  delay  of  work  necessary  in 
making  the  exchange  of  hands. 


LIBEL  AND   SLANDER.  1759 

For  injury,  if  any,  by  reason  of  defendants'  conduct  with 
materialmen,  such  damage  as  fairly  compensates  for  loss  of 
time,  any  extra  cost,  if  any,  for  the  time,  sand,  and  brick,  and 
their  delivery,  over  what  they  would  have  cost  them  without 
any  interference  by  defendants. 

And  if  you  find  for  plaintiffs  as  to  the  brickwork  of  the 
Little  Sisters  of  the  Poor,  the  amount  should  be  damages  as 
fairly  compensate  for  the  loss  of  the  work  or  contract,  which 
should  be  estimated  by  deducting  reasonable  and  probable  cost, 
or  what  it  was  then  worth  to  perform  the  contract,  from  the 
amount  of  plaintiffs'  bid  therefor. 

In  estimating  what  it  was  worth,  or  what  it  would  then  cost, 
you  are  to  assume  that  the  work  would  have  been  conducted 
in  what  you  deem  would  have  been  the  reasonably  prudent  and 
ordinary  way.  You  should  also  take  into  account  the  services 
of  the  plaintiffs  to  superintend  it,  and  the  ordinary  risks  and 
conditions  of  such  enterprises. 

And  by  way  of  damages  to  be  included  in  any  amount  you 
may  find  interest  at  the  rate  of  six  per  cent,  per  annum  from 

the  time  when  such  damage  accrued  to  the day  of , 

19 — ,  the  beginning  of  this  term  of  court. 

If  you  find  compensatory  damages  for  the  plaintiffs,  and  you 
further  find  that  the  defendant's  caused  the  injuries  complained 
of  maliciously,  then  you  may  add  thereto,  as  compensatory 
damages,  such  sum  as  you  think  just  for  plaintiffs'  expense  in 
employing  counsel  to  prosecute  this  cause  of  action.  No  testi- 
mony is  admissible  to  prove  the  value,  but  you  have  had  oppor- 
tunity to  estimate  the  same  by  actual  observation  of  the  service 
rendered  by  their  attorneys. 

And  now,  if,  in  the  judgment  of  the  jury,  the  defendants 
were  actuated  by  such  excessive  degree  of  malice  that  mere  com- 
pensatory damages  are  not,  in  your  opinion,  sufficient  loss  to 
and  punishment  of  the  defendants,  then  the  law  authorizes  you 
to  include,  as  part  of  your  verdict,  such  sums  of  money  as  you 
justly  think  ought  to  he  recovered  in  the  name  and  for  the  bene- 
fit of  the  plaintiffs,  as  exemplary  or  Dunitive  damages.     The 


1760  INSTRUCTIONS  TO  JURY. 

law  leaves  it  wholly  to  the  discretion  of  a  jury  whether  any  sum 

whatever,  and  if  any,  how  much,  should  be  added  therefor. 

You  will  see  to  it  that  your  care  to  administer  justice  in  this 

respect  will  be  in  proportion  to  the  large  discretion  which  the 

law  imposes  on  you,  remembering  that  when  you  take  from  one 

to  give  to  another  as  a  punishment,  it  must  only  be  in  such 

sum  as  is  just'.1 

i  Morris  L.  Buchwalter,  J.,  in  Bricklayers'  Union  No.   1   v.  Parker,  S.  C. 
Judgments  affirmed.     See  31  W.  L.  B.  334. 

Sec.  1986.     Damages  to  be  awarded  in  general. 

It  will  be  your  duty  further  to  consider  whether  your  verdict, 
if  for  the  plaintiff,  shall  be  for  nominal  or  substantial  damages. 
In  this  connection  it  will  be  necessary  to  determine  whether, 
under  all  the  circumstances  disclosed  by  the  evidence,  the  plain- 
tiff has  suffered  a  real  or  substantial  injury  as  alleged  in  the 
petition,  or  whether  he  has  suffered  only  what  is  termed  in  law 
a  nominal  injury.  Nominal  damages  may  be  presumed  from 
the  publication  of  libelous  matter,  but  the  amount  of  such 
nominal  damages  must  be  left  to  the  good  judgment  of  the  jury 
to  be  exercised  upon  all  the  evidence.  The  amount  awarded 
for  nominal  damages  must  rest  in  the  sound  discretion  of  the 
jury  and  may  not  exceed  one  cent. 

The  plaintiff  contends  that  he  has  been  greatly  damaged  by 
reason  of  such  publication.  If  you  find  that  the  plaintiff  has 
not  suffered  any  real  or  substantial  injury,  he  is  entitled  only 
to  such  nominal  damages  as  I  have  indicated.  If  the  plaintiff 
suffered  real  or  substantial  damages  as  alleged,  then  he  is  entitled 
to  receive  such  a  sum  as  in  your  judgment  would  fairly  com- 
pensate him  for  such  loss.  It  may  be  regarded,  too,  as  settled 
in  this  state  that  in  actions  of  tort,  involving  malice,  fraud, 
insult,  or  oppression,  the  jury  may,  in  estimating  compensatory 
damages,  take  into  consideration  the  reasonable  counsel  fee  of 
the  plaintiff  in  prosecuting  this  action  for  the  redress  of  his 
injury  as  against  the  wrong-doer,  even  when  there  are  mitigating 
circumstances  not  amounting  to  a  justification. 


LIBEL   AND   SLANDER.  1761 

In  order  that  you  may  pass  intelligently  upon  the  question 
of  damages,  if  any  damages  are  to  be  awarded,  it  will  be  proper 
for  you  to  consider  the  character  and  reputation  and  standing 
of  the  defendant.  The  extent  of  an  injury  to  a  person's  repu- 
tation or  character  must  depend  partly  on  the  nature  of  the 
publication  itself,  and  partly  on  the  character  and  reputation 
of  the  party  involved.  The  law  presumes  every  man's  reputa- 
tion to  be  good  until  the  contrary  is  made  to  appear.1  If  you 
find  the  publication  a  libel,  as  the  term  has  been  defined,  it  will 
be  left  to  you,  after  all,  to  say  to  what  extent  under  all  the  cir- 
cumstances and  evidence  his  character  and  reputation  have  been 
damaged  thereby,  subject  only  to  the  propositions  of  law  which 
have  been  given  you  by  the  court. 

There  is  no  way  of  reaching  an  accurate  conclusion  in  cases 
like  the  one  on  trial  except  through  the  good  judgment  of  the 
jury.  The  law  therefore  permits  the  jury  to  take  such  a  view 
of  all  the  facts  and  circumstances  properly  in  evidence  in  the 
assessment  of  damages,  and  measure  such  damages  accordingly 
as  may  have  been  shown  by  the  publication  itself. 

You  are  to  consider  whether  the  publication  complained  of 
was  made  only  with  only  such  malice  as  the  law  implies  from 
the  mere  doing  of  a  wrongful  act,  which  is  recognized  in  the 
law  ar>  "implied  malice,"  or  with  an  actual  evil  intent  or  express 
purpose  to  injure ;  or  that  it  was  not  only  false  but  known  to 
be  so  by  the  defendant  at  the  time  of  the  publication  itself,  or 
recklessly  made  without  inquiry  or  information  upon  which  the 
defendant  was  fairly  justified  in  relying  in  its  publication.  It 
may  appear  to  you  on  the  contrary,  that  while  the  defendant 
may  not  convince  you  that  he  should  escape  the  actual  conse- 
quences of  the  alleged  libelous  matter,  if  wrongful  in  fact,  yet 
there  was  no  actual  malice  on  the  part  of  the  defendant,  no 
real  or  conscious  intent  to  injure,  no  bad  motive;  that,  though 
iu  fact  false,  the  defendanl  in  making  the  publication  acted 
upon  information  on  which  he  was  fairly  justified  in  relying; 
that  there  was  more  or  less  truth,  or  a  greater  or  less  approach 
to  the  truth  in  this  publication  to  palliate  to  a  greater  or  less 


1762  INSTRUCTIONS  TO  JURY. 

degree,  or  excuse  in  a  greater  or  less  measure  the  publication 
itself.  You  may  consider  all  those  circumstances.  It  is  no 
defense,  nor  even  a  justification,  for  a  newspaper  to  publish  a 
communication  of  and  concerning  another  libelous  of  itself,  but 
at  the  same  time  it  is  proper  for  the  jury  to  consider  all  the 
circumstances  connected  with  such  publication  in  mitigation  of 
damages.2 

i  Blakeslee  v.  Hughes,  50  0.  S.  490. 

2  Dean  v.  Commercial  Gazette  Co.,  Hamilton  county.     Hunt   (Saml.  F.)   J. 
Approved  by  supreme  court. 


Sec. 

1995. 

M 

a  1  i  c  i  o  u  s  prosecution — 
A  complete  charge. 

1. 

Statement  of  claims. 

2. 

Burden  of  proof.     See  sec. 

3. 

Credibility  of  witnesses. 
See  sec.  . 

4. 

Termination  of  charge — 
Dismissal  sufficient. 

5. 

Probable  cause — Burden  of 
proving — Defined — Infor- 
mation obtained  by  po- 
lice investigation. 

6. 

Malice. 

7. 

Advjce  of  couusel. 

CHAPTER   CXIV. 
MALICIOUS   PROSECUTION. 

Sec. 

1987.  Essential  facts  to  be  found — 

Burden   of  proof. 

1988.  Probable  cause  denned. 

1989.  Malice  may   be   inferred  from 

want  of  probable  cause. 

1990.  Advice  of  counsel. 

1991.  Discharge  by  examining  mag- 

istrate— Prima  facie  evi- 
dence of  want  of  proba- 
ble cause. 

1992.  The     prosecution     must     have 

terminated. 

1993.  Measure     of     damages — Com- 

pensatory— Counsel  fees 
— Exemplary  damages. 

1994.  Malicious    injunction — Proba- 

ble cause  for  commenc- 
ing. 

Sec.  1987.     Essential  facts  to  be  found — Burden  of  proof. 

The  questions  for  the  jury  are: 

Did  the  defendant  institute  the  criminal  prosecution  set  out 
in  petition,  and  thereby  cause  the  arrest  of  the  plaintiff  without 
probable  cause,  as  the  term  is  hereafter  defined?  Was  he  actu- 
ated by  malice,  either  actual  or  implied?  Did  plaintiff  suffer 
damages  by  reason  thereby?1 

To  enable  the  plaintiff  to  maintain  this  action  it  must  appear 
by  a  preponderance  of  the  evidence  that  both  malice  and  want 
of  probable  cause  concurred,  and  the  burden  of  proof  rest's  upon 
the  plaintiff  to  maintain  both  the  allegations  of  malice  and  want 
of  probable  cause.2  It  will  be  sufficient  for  you  to  find  any 
disputed  fact  proved  if  it  be  supported  by  a  preponderance  of 
the  evidence."- 

iSee  Cooley  on  Torts,  208   (181). 

170:! 


1764  INSTRUCTIONS  TO  JURY. 

zCooley  on  Torts,  213    (184). 

3  Voris,  J.,  in  Weber  v.  Viall,  Summit  Co.  Com.  Pleas.  "An  action  for 
tort  will  lie  when  there  is  a  concurrence  of  the  following  circum- 
stances: 1.  A  suit  or  proceeding  has  been  instituted  without  prob- 
able cause  therefor.  2.  The  motive  in  instituting  it  was  malicious. 
3.  The  prosecution  has  terminated  in  the  acquittal  or  discharge  of 
the  accused."     Cooley   on  Torts,  208    (181). 

Sec.  1988.     Probable  cause  defined. 

Probable  cause  is  defined  to  be  a  reasonable  ground  for  sus- 
picion, supported  by  circumstances  sufficiently  strong  in  this 
case  to  warrant  an  impartial  and  reasonably  cautious  man — 
that  is,  a  man  of  ordinary  caution — in  the  belief  that  the  plain- 
tiff was  guilty  of  the  offense  with  which  he  was  charged,  and 
set  out  in  detail  in  the  petition  in  dispute.  The  true  inquiry 
for  you  to  answer  is  not  what  were  the  facts  as  to  the  guilt  or 
innocence  of  the  plaintiff,  but  what  ought  the  defendant  have 
reason  to  believe  in  reference  thereto  at  the  time  he  instituted 
the  criminal  proceedings  and  caused  the  arrest  of  the  plaintiff.1 

So  that  in  determining  whether  the  defendant  had  probable 
cause  or  not,  you  should  consider  the  question  in  reference  to 
the  facts  and  circumstances  relating  thereto,  and  which  influ- 
enced him  in  causing  the  arrest  and  preferring  the  charges,  as 
they  were  known,  and  as  they  reasonably  appeared  to  be  at 
the  time,  and  not  by  the  facts  and  circumstances  as  they  have 
been  developed  since.2 

If  you  find  there  was  probable  cause,  as  thus  defined,  then 
you  need  go  no  further,  and  your  verdict  should  be  for  the 
defendant ;  but  if  you  should  find  from  the  evidence  that  the 
defendant  maliciously  caused  the  arrest  and  preferred  the 
charges  against  the  plaintiff,  without  probable  cause  to  believe 
that  he  was  guilty  of  the  offense  alleged  against  him,  then  you 
should  find  for  the  plaintiff. 

1  The  burden    of   proof  to   show   want   of   probable   cause   rests   upon   the 

plaintiff.     Cooley   on    Torts,   213    (184);    and    will   not  be    inferred 
from  mere  failure  of  the  prosecution.     Id.     Kinkead,  Torts,  sec.  425. 

2  Cooley  on  Torts,  211    (182),  notes  3  and  4. 


MALICIOUS  PROSECUTION.  1765 

Sec.  1989.     Malice  may  be  inferred  from  want  of  probable 
cause. 

If  the  jury  find  from  the  facts  u^d  circumstances  proved  on 
the  trial,  that  the  defendant  had  not  probable  cause  as  defined, 
and  that  he  did  prefer  the  charges  alleged  in  the  petition  and 
thereby  caused  the  arrest  and  prosecution  of  the  plaintiff,  then 
you  may  infer  malice  from  such  want  of  probable  cause.1  But 
this  inference  is  not  conclusive,  and  must  be  considered  in 
relation  to  the  other  evidence  submitted  to  you  bearing  upon 
this  issue,2  so  you  are  to  take  into  consideration  all  the  cir- 
cumstances given  you  in  evidence  relating  to  this  branch  of 
the  case  in  determining  whether  defendant  was  actuated  by 
malice  or  not,  and  you  should  be  controlled  by  the  preponder- 
ance of  the  evidence.3 

In  common  acceptance,  malice  means  ill-will  against  a  person, 
or  express  malice,  but  in  the  legal  sense  it  denotes  a  wrongful 
act  done  intentionally  and  without  just  cause.4 

i  Cooley  on  Torts,   214    (185);    Holliday   v.   Sterling,   62   Mo.   321;    Hark- 
rader  v.  Moore,  44  Cal.   144;  Roy  v.  Goings,  112  111.  662. 

2  Cooley  on  Torts,  214    (185)   and  cases  cited. 

3  See  Cooley  on  Torts,  214    (185).     The  burden   is  upon  plaintiff  to  prove 

malice,  Cooley  on  Torts,  214;  Jordan  v.  R.  R.,  81  Ala.  220;  Hinson 
v.  Powell,  109  N.  C.  534. 
*  Voris,  J.,  in  Weber  v.  Viall,  Summit  Co.  Com.  Pleas.  Probable  cause  is 
a  reasonable  ground  for  suspicion  supported  by  circumstances  suffi- 
ciently strong  to  warrant  a  belief  that  the  person  accused  is 
guilty.  Ash  v.  Marlow,  20  0.  110.  It  depends  upon  the  defend- 
ant's actual  and  reasonable  belief.  White  V.  Tucker,  16  O.  S.  468, 
470.  Want  of  probable  cause  must  be  shown — the  fact  of  acquittal 
does  not  show  it.  John  v.  Bridgman,  27  O.  S.  22.  30.  Want  of 
probable  cause,  without  malice,  is  not  sufficient  to  authorize 
the  action.  Emerson  v.  Cochran,  111  Pa.  St.  610.  As  evidence  of 
malice  the  question  of  probable  cause  is  wholly  for  the  jury.  Hicks 
V.  Faulkner,  L.  R.  8  Q.  B.  D.  167:  Quartz  Hill  Co.  v.  Eyre,  L.  R. 
11  Q.  B.  I).  674.  If  facts  are  disputed,  the  question  is  for  the  jury, 
if   undisputed,    for    the    court.      Cooley  on  Torts,  200    (181).     "It   is 

generally  the  duty  of  the  court,  when  evidence  has  been  given  to 
prove  or  disprove  the  existence  of  probable  cause,  to  submit  to  the 
jury  Us  credibility,  and  what  facts  it  proves,  with  instructions 
that  the  facts  found  amount  to  proof  of  probable  cause  or  that 
they  do  not."      Stewart   r.  Sonneborn,  OS  1'.  S.   187. 


1766  INSTRUCTIONS  TO  JURY. 

Sec.  1990.    Advice  of  counsel. 

The  defendant  has  interposed  the  defense  that  he  acted  in 
good  faith,  and  upon  the  advice  of  a  reputable  attorney.  As 
to  this  defense  you  are  instructed  that  the  advice  of  counsel 
constitutes  a  defense  to  this  action.1  If  the  defendant  gave  to 
his  attorney  a  full  and  honest  presentation  of  the  facts  bearing 
upon  the  guilt  or  innocence  of  the  accused  within  his  knowl- 
edge, or  which  by  reasonable  diligence  could  be  ascertained 
by  him,  and  which  he  has  reasonable  cause  for  believing  he  was 
able  to  prove,  if  the  defendant  acted  in  good  faith  and  in  ac- 
cordance with  the  attorney's  advice,  it  would  make  no  difference 
whether  the  attorney  was  mistaken  in  his  opinion  and  belief  as 
to  the  existence  of  probable  cause,  or  whether  the  facts  com- 
municated to  the  counsel  constituted  the  offense  (embezzlement) 
or  not.  The  mistakes  or  errors  of  the  counsel,  so  consulted, 
can  not  lay  the  foundation  for  damages  against  the  defendant, 
if  in  other  respects  he  is  not  liable  under  the  instructions  just 
given  to  you.2 

i  Barlight  v.  Tammany,  38  Am.  St.  856;  Johnson  v.  Miller,  82  la.  693; 
Jaggard  on  Torts,  p.  621.  "A  prudent  man  is  therefore  expected 
to  take  such  advice  (of  counsel)  ;  and  when  he  does  so  and  places 
all  the  facts  before  his  counsel,  and  acts  upon  his  opinion,  proof 
of  the  fact  makes  out  a  case  of  probable  cause,"  etc.  Cooley  on 
Torts,  212. 

2  Voris,  J.,  in  Weber  v.  Viall.  Summit  Co.  Com.  Pleas.  All  facts  must 
have  been  communicated,  20  O.  119,  4  W.  L.  B.  1107.  16  O.  S.  468, 
30  W.  L.  B.  120;  see  Jaggard  on  Torts,  621.  It  is  a  question  for 
the  jury  whether  he  acted  bona  fide  on  the  opinion,  believing  that 
he  had  a  cause  of  action.     Cooley  on  Torts,  212   (No.  184),  note  2. 

Sec.  1991.     Discharge  by  examining  magistrate — Prima  facie 
evidence  of  want  of  probable  cause. 

The  fact  that  the  examining  magistrate  discharged  the  plain- 
tiff because  he  did  not  find  him  guilty  of  the  charge  on  which 
he  was  arrested,  and  the  failure  of  the  defendant  to  further 
prosecute  the  case,  would  be  prima  facie  evidence  that  the  crim- 
inal prosecution  and  arrest  was  without  probable  cause,  and 
not  conclusive  evidence  thereof.1     By  prima  facie  evidence  it 


MALICIOUS  PROSECUTION.  1767 

is  meant  such  evidence  as  creates  a  presumption  that  these  facts 
are  established  by  it  in  the  absence  of  any  evidence  to  the  con- 
trary. In  other  words,  it  is  of  sufficient  weight  to  establish  the 
disputed  facts  until  they  are  rebutted  or  overcome  by  evidence 
to  the  contrary.  But  this  presumption  must  yield  to  the  weight 
of  the  evidence  submitted  to  you,  taking  the  whole  of  it.2 

i  Parkhurst  v.  Masteller,  57  la.  474;  Hale  v.  Boylen,  22  W.  Va.  234;  Bar- 
ber v.  Gould,  20  Hun,  466;  Sharpe  v.  Johnston,  76  Mo.  660. 

2  Voris,  J.,  in  Weber  v.  Viall,  Summit  Co.  Com.  Pleas.  The  record  of 
the  magistrate  is  evidence  at  least  to  show  the  facts  of  the  dis- 
charge of  the  plaintiff.  John  v.  Bridgman,  27  0.  S.  22;  Cooley 
on  Torts,  213.  It  is  not  such  evidence  as  will  alone  sustain  an 
action   for   malicious   prosecution.     Thorpe   v.   Balliett,   25   111.   339. 

Sec.  1992.     Prosecution  must  have  terminated. 

You  are  instructed  that  before  the  plaintiff  can  recover  for 
the  malicious  prosecution  of  a  criminal  charge,  it  must  appear 
from  the  evidence  that  the  prosecution  is  at  an  end ;  and  it  must 
also  appear  that  the  plaintiff  was  acquitted  of  the  charge.1 

The  defendant  having  had  his  day  in  court  in  the  trial  of 
the  charge  complained  of,  it  is  but  reasonable  to  require  that 
he  shall,  by  the  result  of  the  trial,  show  the  criminal  charge  to 
be  untrue  before  he  can  prosecute  another  action  on  the  ground 
that  such  charg?  was  maliciously  made.2 

i  Fortman  v.  Rottier,  8  0.  S.  550;  Cooley  on  Torts,  215  (186);  Cardinal 
v.  Smith,   10!)  Mass.   159;   O'Brien   v.  Barry,   106  Mass.  300. 

2  Id.  As  to  what  kind  of  a  determination  will  be  sufficient  to  found  suit 
on,  see  Jaggard  on   Torts,  610-11;    Cooley  on  Torts,  215    (186). 

Sec.  1993.    Measure      of      damages — Compensatory — Counsel 
fees — Exemplary  damages. 

If  you  find  the  issues  for  the  plaintiff,  he  will  be  entitled  to 
recover  compensatory  damages  at  least.  Compensatory  dam- 
ages with  reference  to  this  subject  means  such  sum  as  in  your 
judgment,  guided  by  the  evidence,  the  plaintiff  ought  to  receive 
for  the  injuries  caused  by  the  wrongful  acts  charged  in  the 
petition,  and  that  you  can  fairly  say  from  the  evidence  was 
the   direct   and   ordinary   result   thereof  to   his   reputation   on 


1768  INSTRUCTIONS  TO  JURY. 

account  of  mental  suffering  of  the  plaintiff,  if  such  you  find, 
and  you  may  include  as  compensatory  damages  such  amount  as 
he  was  compelled  to  pay  in  the  defense  of  the  criminal  action, 
and  for  reasonable  time  lost  by  reason  of  the  arrest,  and  the 
defense  he  was  required  to  make. 

You  may  also  include  reasonable  counsel  fees  incurred  by 
the  plaintiff  in  the  prosecution  of  this  case.  It  is  a  matter  very 
much  in  the  discretion  of  the  jury,  but  this  discretion  must  be 
exercised  reasonably,  so  as  to  compensate  for  the  injury  actually 
sustained  and  nothing  more,  unless  you  find  this  a  case  for 
exemplary  damages. 

But  if  you  find  from  the  evidence  that  in  committing  the 
wrongs  complained  of  it  involved  the  ingredients  of  actual 
malice,  ir.tentional  insult,  and  oppression  on  the  part  of  the 
defendant,  and  the  plaintiff  had  conducted  himself  in  a  reason- 
able manner  under  the  circumstances,  you  may  go  beyond  the 
rule  of  mere  compensation  and  award  exemplary  or  punitive 
damages;  that  is,  such  damages  as  will  compensate  him  for  the 
wrong  done,  and  to  punish  the  defendant,  and  to  furnish  an 
example  to  deter  others. 

If  you  find  this  a  case  that  warrants  exemplary  damages,  the 
law  fixes  no  limit  to  your  discretion  in  that  behalf  as  to  the 
amount,  except  that  it  requires  at  your  hands  that  your  dis- 
cretion in  that  respect  should  be  fairly,  reasonably,  judiciously 
and  impartially  exercised.  It  should  be  exercised  without  feel- 
ing, resentment  or  hasty  consideration.  And  what,  under  all 
the  circumstances,  should  be  reasonable  punishment  is  the  true 
test.1 
i  Nye,  J.,  in  Weber  v.  Viall,  Summit  Co.  Com.  Pleas. 

Sec.  1994.    Malicious    injunction — Probable    cause    for    com- 
mencing. 

The  mere  commencing  of  said  suit  by  the  defendants  against 
the  plaintiffs,  and  obtaining  said  injunction  against  the  plain- 
tiffs, would  not,  and  does  not,  give  the  plaintiffs  a  right  to  main- 
tain an  action  against  the  defendants  for  malicious  prosecution 
and    for    damages.       In    addition    to   that,    the   plaintiffs   must 


MALICIOUS  PROSECUTION. 


1769 


show  by  a  preponderance  of  evidence  that  the  said  injunction 
was  obtained  by  the  defendants  maliciously,  and  without  prob- 
able or  reasonable  cause.  These  two  points  you  are  to  decide 
as  reasonable  men,  upon  the  evidence.  Probable  cause  for  the 
obtaining  said  injunction  in  such  a  state  of  facts,  known  to  and 
influencing  the  defendants,  as  would  lead  a  man  of  ordinary 
caution  and  prudence,  acting  conscientiously,  impartially  and 
reasonably,  and  without  prejudice,  upon  the  facts  within  the 
parties'  knowledge,  to  believe  or  entertain  a  reasonable  suspicion 
that  they  had  the  right  to  obtain  and  maintain  the  injunction. 
If  you  find  that  the  defendants  in  this  matter  acted  upon  a 
reasonable  ground  of  suspicion,  that  the  plaintiffs  had  no  right 
on  said  premises,  while  they,  the  defendants,  had  full  right, 
supported  by  circumstances  sufficiently  strong  in  themselves  to 
warrant  a  cautious  man  in  the  belief  that  defendants  had  a 
right  to  obtain  and  maintain  said  injunction,  then  they  may  find 
that  there  was  probable  cause  for  obtaining  said  injunction. 

Probable  cause  does  not  depend  upon  the  actual  state  of  the 
case,  but  upon  the  reasonable  belief  of  the  defendants  that  they 
had  a  right  to  obtain  and  maintain  said  injunction;  but  this 
belief  will  not  constitute  a  defense  to  this  action,  if  all  the 
circumstances  under  which  defendants  acted  clearly  show  that 
there  was  no  probable  cause  for  their  acts  in  this  behalf,  and 
that  their  belief  was  groundless  and  could  not  have  been  formed 
without  the  grossest  ignorance  and  negligence.  That  is  to  say, 
taking  into  consideration  all  the  facts  relating  to  and  going  to 
make  up  the  claim  of  title  of  plaintiffs  in  said  twenty-three  acres, 
which  was  known  to  the  plaintiffs,  did  they  honestly  believe, 
and  had  they  reason  to  believe  that  plaintiffs  had  no  title  to 
any  interests  in  said  twenty-three  acres  that  gave  the  right  to 
open  mines  thereon  and  mine  coal?  If  they  did  so  believe  and 
had  reason  so  to  believe  from  the  facts  of  which  they  bad  knowl- 
edge, then  you  will  find  for  tin-  defendants  on  this  cause  of  ac- 
tion.    Otherwise  you  will  proceed  next  to  1 1 1 < ■  question  of  malice.1 

i  Samuel  P.  TTunter,  J.,   in  Newark  Coal   Co.  v.  Upson,  40  O.   S.    17.      Ap 
proved.      For    interesting  and    instructive   ease    and    note   on    subject, 
see  Williams  v.  Hunter,  14  Am.  Dee.  507,  f>01  ;  Cooley  on    Torts,  187. 


1770  INSTRUCTIONS  TO  JURY. 

No  action  can  be  brought  to  recover  damages  for  the  malicious  prosecu- 
tion of  a  civil  suit  where  no  rights  of  the  plaintiff  have  been 
violated  by  seizure  of  property  or  invasion  of  liberty.  Bartholomew 
v.  Met.  Life  Ins.  Co.,  1  Oh.  Dec.  267.  (Hamilton,  J.,  Cuyahoga 
Com.   Pleas.) 

Sec.  1995.    Malicious  prosecution — Complete  charge. 

1.  Statement  of  claims. 

2.  Burden  of  proof. 

3.  Credibility  of  witnesses. 

4.  Termination  of  charge — Dismissal  sufficient. 

5.  Probable  cause — Burden  of  proving — Definition — Infor- 

mation obtained  by  police  investigation. 

6.  Malice. 

7.  Advice  of  counsel. 

1.  Statement  of  claims.  The  case  is  one  of  malicious  prose- 
cution of  a  criminal  charge,  and  the  right  which  is  injured  by- 
such  a  wrong  is  the  right  of  reputation. 

The  facts  which  plaintiff  must  establish  in  order  to  make  out 
his  case  are  the  following:  That  he  has  been  prosecuted  on  a 
criminal  charge  by  the  defendant,  that  the  prosecution  is  at 
an  end,  and  that  it  was  instituted  maliciously  and  without  prob- 
able cause. 

4.  Termination  of  charge — Dismissal  sufficient.  Plaintiff 
must  establish  thajt  the  prosecution  of  which  he  complains  was 
terminated.  So  long  as  the  case  is  not  ended  one  way  or  the 
other,  either  by  acquittal  or  conviction,  the  outcome  would  be 
in  doubt,  and  there  could  in  such  case  be  no  right  of  action  for 
malicious  prosecution. 

A  dismissal  of  a  criminal  proceeding  or  action  in  the  police 
court  is  a  sufficient  termination  of  the  cause  in  order  to  lay  the 
foundation  for  the  prosecution  of  such  a  case  as  this,  the  same 
as  would  an  acquittal  of  the  defendant.  The  evidence  of  such 
disposition  of  a  criminal  charge  in  the  police  court  is  competent 
to  show  the  fact  of  the  discharge  of  the  plaintiff  from  the  crim- 
inal charge. 


MALICIOUS  PROSECUTION. 


1771 


5.  Probable  cause — Burden  of  proving — Definition — Informa- 
tion obtained  by  police  investigation.  The  burden  is  on  the 
plaintiff  to  show  want  of  probable  cause,  because  the  presump- 
tion of  law  is  that  every  prosecution  is  founded  upon  probable 
cause  and  is  instituted  for  the  purpose  of  justice  only.  That 
presumption  must  be  overcome  by  the  plaintiff,  and  the  mere 
fact  of  the  dismissal  of  the  action  by  the  police  court,  or  the 
acquittal,  is  not  enough  to  overcome  the  presumption.  Other 
evidence  is  necessary  to  show  want  of  probable  cause. 

Probable  cause  is  a  reasonable  ground  for  suspicion  supported 
by  circumstances  sufficiently  strong  in  themselves  to  warrant  a 
cautious,  prudent  man  in  the  belief  that  the  person  accused  is 
guilty  of  the  offense  for  which  he  is  charged.  That  is,  the 
question  is  whether  the  defendant  had  a  reasonable  ground  for 
suspicion  supported  by  the  circumstances,  by  what  had  been 
reported  to  him  by  persons  claiming  to  have  knowledge  of  the 
fact,  or  by  any  report  of  an  investigation  made  by  police  officers 
of  the  case  which  came  to  his  knowledge,  if  any  did.  If  the 
defendant  had  such  reasonable  ground  for  suspicion,  and  if  the 
same  was  supported  by  circumstances  and  reports  of  investiga- 
tions were  sufficiently  strong  to  warrant  him  as  an  impartial 
and  reasonably  cautious  man  in  the  belief  that  plaintiff  was 
guilty  of  the  offense,  then  he  can  not  be  held  responsible  for  the 
complaint  made  in  this  case. 

It  can  not  be  expected  that  the  defendant  in  making  this 
criminal  complaint  should  act  upon  facts  personally  known  to 
him,  but  he  may  be  allowed  to  act  upon  information  which  he 
obtains  from  others,  if  it  is  of  a  credible  nature;  if  it  is  such 
as  to  warrant  an  ordinarily  prudent  person  under  similar  cir- 
etunstances  acting  in  good  faith  to  believe  that  the  plaintiff, 
under  all  of  the  facts  and  circumstances  coming  to  his  knowl- 
edge, was  guilty  of  the  crime  charged. 

Prudence  required  that  the  defendant  in  preferring  the  <'<>m- 
plaint,  should  make  some  kind  of  an  investigation,  such  as  would 
reasonably  satisfy  him  of  the  truth  of  the  faets.  II  is  for  the 
jury  to  determine  as  a  matter  of  fact,  whether  or  not  under  all 
the  circumstances  of  this  case  the  investigation  that  may  appear 


1772  INSTRUCTIONS  TO  JURY. 

to  have  been  made  as  shown  by  the  evidence  was  such  as  was 
reasonably  necessary  under  the  peculiar  circumstances  of  this 
case.  The  defendant  could  not  be  expected  to  personally  know 
all  the  facts  and  circumstances  of  the  crime,  and  the  public 
welfare  demands  prompt  action  in  the  prosecution  of  criminal 
cases.  The  jury  may  therefore  consider  the  evidence  as  to  the 
part  taken  in  the  investigation  of  the  charge  by  the  police  and 
by  the  detectives  of  the  city,  in  connection  with  all  the  other 
evidence  upon  the  question  of  the  existence  at  the  time  of  prob- 
able cause  and  determine  the  fact  upon  the  whole  evidence. 

It  depends  largely  upon  the  character  of  the  information  and 
upon  the  character  of  the  person  from  whom  the  information 
is  received  whether  it  should  be  deemed  reliable  or  not.  That 
is  why  this  case  is  submitted  to  the  jury,  for  it  to  determine 
that  fact  along  with  the  others,  it  being  regarded  as  peculiarly 
within  the  province  of  the  jury  to  determine  whether  or  not 
the  information  which  came  to  the  defendant,  and  any  advice 
that  he  may  have  properly  received  from  counsel,  was  such  as 
to  warrant  a  reasonably  prudent  man  in  acting  upon  it  and 
preferring  this  criminal  charge.  The  reasonable  ground,  in 
order  to  form  the  basis  of  want  of  probable  cause  must  be  con- 
sidered by  the  jury  as  existing  at  the  time  the  charge  was  made, 
and  as  it  probably  appeared  to  the  defendant  at  that  time,  and 
not  as  it  may  have  appeared  afterwards,  at  any  time  afterwards 
in  the  light  of  subsequent  developments. 

On  the  question  of  the  existence  of  probable  cause,  while  the 
jury  may  consider  the  testimony  as  to  the  innocence  of  the 
plaintiff  of  the  charge  made  against  him,  still  the  jury  is  in- 
structed that  if  it  should  find  aside  from  the  question  of  inno- 
cence that  the  facts  and  circumstances  made  known  to  the 
defendant  before,  and  at  the  time  he  filed  the  affidavit  were 
such  as  to  cause  a  reasonably  prudent  man  in  believing  plain- 
tiff to  be  guilty  of  the  crime,  then  the  jury  may  find  in  such 
event  that  there  was  probable  cause,  and  in  such  case  your  duty 
would  be  to  render  a  verdict  for  the  defendant  and  against  the 
plaintiff. 


MALICIOUS  PROSECUTION. 


1773 


6.  Malice.  Malice  is  an  essential  ingredient  or  character- 
istic of  the  wrong  of  malicious  prosecution.  Unless  it  appears 
that  the  defendant  was  actuated  by  malice  in  the  prosecution 
or  preferment  of  the  charge  against  plaintiff,  this  action  for 
malicious  prosecution  can  not  be  maintained. 

Malice  as  used  in  law  does  not  necessarily  mean  spit.'  or  ill 
will  toward  a  particular  individual.  It  means,  on  the  other 
hand,  an  evil  design  in  general,  or  the  outgrowth  of  a  wicked 
and  depraved  mind,  a  mind  devoid  of  ordinary  social  duties; 
a  mind  which  does  not  appreciate  or  regard  the  obligations  to 
mankind  in  general,  or  to  society.  It  is  a  term  used  to  charac- 
terize reckless  or  wanton  disregard  of  the  rights  of  another. 
Its  general  use  in  law  is  to  express  an  act  done  without  any 
sufficient  reason,  without  any  lawful  excuse,  when  the  act  proves 
to  be  wrong  in  itself.  Malice  in  law  is  that  which  may  be  in- 
ferred from  the  unlawful  act  which  is  done  wilfully  and  pur- 
posely but  without  any  motive  to  injure  another,  or  where  the 
act  is  done  through  mere  wantonness  or  gross  carelessness. 

If  the  jury  should  find  in  this  case  that  there  was  probable 
cause  for  making  the  charge,  then  it  could  find  no  malice.  If 
the  jury  finds  that  the  defendant  in  making  the  charge  acted 
without  probable  cause,  according  to  the  meaning  of  the  term 
given  it,  then  it  would  be  warranted  in  inferring  from  such 
want  of  probable  cause  that  the  preferment  of  the  charge  by 
the  defendant  against  the  plaintiff  was  done  with  malice. 

7.  Advice  of  counsel.  The  defense  in  this  case  is  that  the 
defendant  acted  upon  the  advice  of  counsel.  Concerning  this 
claim  the  jury  is  instructed  that  the  advice  of  counsel  consti- 
tutes a  defense  to  this  action.  If  it  should  appear  from  the 
evidence  that  the  defendant  gave  to  the  attorney,  the  prosecut- 
ing attorney  of  the  police  court  in  this  case,— a  full  and  honest 
presentation  of  the  facts  bearing  upon  the  guilt  or  innocence 
of  the  accused,  within  his  knowledge,  or  which  by  reasonable 

diligence  could  be  ascertained  by  him,  and  which  he  had  rea- 
sonable cause  for  believing  he  was  able  t'0  prove,  if  the  defendant 
acted  in   good   faith  and  in  accordance   with   the  attorney's  ad- 


1774  INSTRUCTIONS  TO  JURY. 

vice,  it  would  make  no  difference  whether  the  attorney  was 
mistaken  in  his  opinion  and  belief  as  to  the  existence  of  probable 
cause,  or  whether  the  facts  communicated  to  counsel  constituted 
an  offense  or  not.  Mistakes  or  errors  of  counsel  so  consulted 
can  not  lay  the  foundation  for  damages  against  the  defendant, 
if  in  other  respects  he  is  liable  under  the  instructions  given 
you  by  the  court.  The  question  for  the  jury  then  is  whether 
defendant  laid  before  the  police  prosecutor,  to  whom  he  went 
for  advice,  and  who  called  the  defendant  to  his  office,  as  it 
appears  in  the  evidence,  all  the  information  that  he  reasonably 
could  obtain  in  regard  to  this  alleged  offense.  If  he  did,  or  if 
it  should  appear  in  evidence  that  the  police  prosecutor  himself 
gave  directions  to  certain  officers  of  the  police  court  to  make 
investigations  into  this  alleged  crime,  and  that  they  were  re- 
ported to  the  police  prosecutor,  and  the  same  afterwards  came 
to  the  knowledge  of  the  defendant,  and  if  upon  all  that  was 
communicated  by  either  the  officers  or  by  the  defendant  in  this 
case  to  the  police  prosecutor,  and  if  all  that  was  so  communi- 
cated in  either  way  was  all  that  could  have  been  reasonably 
obtained  under  such  circumstances,  and  if  it  should  appear  that 
the  defendant  acted  in  good  faith  in  seeking  and  relying,  if  he 
did  rely  on  the  advice  of  the  prosecutor,  then  the  jury  is  in- 
structed that  that  constitutes  a  complete  defense  to  the  charge 
made  by  the  plaintiff  in  this  case.1 

]  Berg  v.  Eichenlaub,  Franklin  Co.  Com.  Pleas.  Kinkead,  J.  These  instruc- 
tions contain  new  elements  concerning  the  obtaining  of  information 
from  police  investigation  as  reflecting  upon  probable  cause.  The  case 
did  not  go  farther. 


CHAPTER   CXV. 
MALPRACTICE. 


SEC. 


SEC. 


1996.  Care  required  of  physician.  4.   Express       consent       after 

1997.  Duty  of  physician  to  use  rea-  physical  examination. 

sonable      and      ordinary  5.  Authority  to  do  what  rea- 

care_Another  form.  sonably  necessary  to  Bave 

1998.  Contributory     negligence     of  life. 

patient.  6.  Patient     chargeable     with 

1999.  Liability  of  surgeon  for  per-  acts  of  preparation. 

forming   operation    with-  7.  Care    by     physician     after 

out  consent.  operation. 

1.  Consent    presumed    unless       2000.     Liability  of  physician  for  in- 

concealment  of  facts.  juries  caused   by    use   of 

2.  Consent  essential.  X-Rays. 

3.  Presumed     by     submission 

to  operation. 

Sec.  1996.     Care  required  of  a  physician. 

You  are  instructed  that  a  surgeon  or  physician  who  offers 
his  services  to  the  public  that  he  impliedly  agrees  with  those 
who  employ  him  that  he  possesses  that  reasonable  degree  of 
learning,  skill,  and  experience  which  is  ordinarily  possessed  by 
persons  engaged  in  that  profession,  sufficient  to  qualify  him  to 
engage  in  that  profession.  A  surgeon  assumes  to  exercise  the 
ordinary  care  and  skill  of  his  profession,  and  is  liable  for  in- 
juries resulting  from  his  failure  to  do  so.1 

The  implied  contract  which  the  physician  or  surgeon  thus 
enters  into  does  not  extend  to  an  agreement  that  he  will  cure, 
but  only  that  he  will  employ  such  reasonable  skill  and  diligence 
as  are  ordinarily  exercised  in  his  profession  by  physicians.  The 
law  does  not,  however,  require  the  highest  degree  of  skill  and 
science.  The  standard  must  be  a  practical  and  attainable  one.2 
He  does  not  undertake  for  extraordinary  care  or  extraordinary 
diligence  any  more  than  he  does  for  uncommon  skill. 

1775 


177G  INSTRUCTIONS  TO  JURY. 

In  stipulating  to  exert  his  skill  and  apply  his  diligence  and 
care,  he  contracts  to  use  his  best  judgment.3 

i  Geiselman    v.    Scott,    25    0.    S.    86;    Jaggard    on    Torts,   910;    Cooley    on 

Torts,  778    (649). 
2  Jaggard  on  Torts,  912;  Cooley  on  Torts,  778    (649). 
s  Leighton   v.   Sargent,   27   N.   H.   460.     "As   the  promise   is   not   different 

in   the   case  of  the  physician   and    surgeon   from  what   it   is    in   the 

case  of  the  attorney,  etc.,  one  general  rule  may  be  given."     Cooley 

on  Torts,  777    (648). 

Sec.  1997.    Duty  of  physician  to  use  reasonable  and  ordinary 
care — Another  form. 

The  jury  is  instructed  that  the  legal  responsibility  of  a  phy- 
sician is  such  that  he  contracts  with  his  patient  that  he  has 
the  ordinary  skill  of  members  of  his  profession  in  a  like  situa- 
tion, that  he  will  exercise  ordinary  care  and  reasonable  diligence 
in  his  treatment  of  the  case,  and  that  he  will  use  his  best  judg- 
ment in  the  application  of  his  skill  to  the  case.1  A  physician 
and  surgeon  is  required  to  exercise  that  degree  of  knowledge 
and  skill  and  care  which  physicians  and  surgeons  practicing  in 
similar  localities  ordinarily  possess.  In  other  words,  a  physician 
is  held  to  that  care  and  skill  which  is  exercised  generally  by 
physicians  of  ordinary  care  and  skill  in  his  and  similar  com- 
munities. The  physician  is  not  chargeable  with  negligence  for 
failure  to  use  the  best  skill  and  ability  if  he  uses  the  care  and 
skill  which  is  exercised  generally  by  physicians  of  ordinary  care 
and  skill  in  similar  localities.2  The  physician  is  not  an  insurer; 
he  does  not  warrant  a  favorable  result.  The  practitioner  can 
not  be  expected  to  know,  or  be  bound  to  know  or  to  diagnose 
correctly,  that  which  is  unknowable.3 

iHenslin  v.  Wheaton.  91  Minn.  219;  1  Ann.  Cas.  19,  103  Am.  St.  504. 
64  L.  R.  A.  126;  Gore  v.  Brockman.  138  Mo.  App.  231;  Sauers  v. 
Smits,  49  Wash.  557,  95  Pac.  1097,  17  L.  R.  A.   (N.S.)   1242. 

2  Hales  v.  Raines,  146  Mo.  App.  232,  130  S.  W.  425. 

3  Henslin  r.  Wheaton,  supra. 

Sec.  1998.     Contributory  negligence  of  patient. 

If  you  shall  find  that  the  defendant  directed  the  plaintiff  ir> 
observe  absolute  rest  as  part  of  the  treatment  to  said  foot,  and 


i,i  Ai-i'ilAUTlCK.  1777 

that  direction  was  such  as  a  surgeon  or  physician  or  ordinary 
skill  would  adopt  or  sanction,  and  the  plaintiff  negligently  failed 
to  observe  such  direction,  or  purposely  disobeyed  the  same,  and 
that  such  neglect  or  disobedience  approximately  contributed  to 
the  injuries  of  which  he  complains,  he  can  not  recover  in  this 
action,  although  he  may  prove  that  the  defendant's  negligence 
and  want  of  skill  also  contributed  to  the  injury.  This  grows 
out  of  the  doctrine  that  a  party  who  'has  directly,  by  his  own 
negligence  or  disregard  of  duty,  contributed  to  bring  an  injury 
upon  himself,  can  not  hold  other  parties  who  have  also  con- 
tributed to  the  same  responsible  for  any  part  thereof,  nor  does 
it  make  any  difference  that  one  of  the  parties  contributed  in  a 
much  greater  degree  than  the  other;  the  injured  party  must 
not  have  contributed  at  all.1 
1  Approved  in  Geiselman  v.  Scott,  25  0.  S.  86. 

Sec.  1999.     Liability    of    surgeon    for    performing    operation 
without  consent. 

1.  Consent  presumed  unless  concealment  of  facts. 

2.  Consent  essential. 

3.  Presumed  by  submission  to  operation. 

4.  Express  consent  after  physical  examination. 

5.  Authority  to  do  what  reasonably  necessary  to  save  life. 

6.  Patient  chargeable  with  acts  of  preparation. 

7.  Care  by  physician  after  operation. 

1.  Cons<  nt  presumed  unless  concealment  of  facts.  Consent  of 
a  person  voluntarily  submitting  to  a  surgical  operation  is  pre- 
sumed, unless  there  are  such  circumstances  shown  by  the  evi- 
dence as  show  that  she  was  the  victim  of  a  false  or  fraudulent 
misrepresentation,  or  of  such  concealment  of  facts  as  would 
deceive.  Tf,  therefore,  such  a  false  or  fraudulent  misrepre- 
sentation or  deception  is  relied  upon  in  this  case,  then  sui'h  fact 
or  facts  should  be  established  by  the  plaintiff  by  proof,  the  same 
as  any  other  material   fad   relied  ii poii  by  the  plaintiff. 

2.  Consent  essential.  Tt  is  my  duty  to  charge  you  that  the 
consent  of  the  plaintiff  was  necessary  before  the  defendants  or 


1778  INSTRUCTIONS  TO  JURY. 

either  of  them  could  lawfully  perform  the  operation  which  was 
performed.  If  such  consent'  were  not  given,  then  the  defend- 
ants had  no  right  to  operate  upon  her  in  the  manner  complained 
of,  whether  the  same  was  necessary  and  advisable  or  not. 

3.  Presumed  by  submission  to  operation.  But  if  there  was 
no  misrepresentation  as  to  the  nature  of  the  operation  and  she 
submitted  herself  to  the  physicians  for  an  operation,  then  her 
consent  will  be  presumed  to  the  performance  of  such  operation 
as  was  reasonably  necessary  to  save  her  life  and  to  protect  her 
from  continued  and  serious  illness. 

4.  Express  consent  after  physical  examination.  Furthermore, 
even  if  you  find  the  fact  to  be  that  Dr.  B.  did  advise  the  plain- 
tiff before  she  went  to  the  hospital  that  the  only  operation 
necessary  or  that  would  be  performed  would  be  a  minor  opera- 
tion which  would  not  necessitate  the  use  of  a  knife,  yet,  if  after 
she  went  to  the  hospital  an  examination  was  made  and  she  was 
there  informed  that  certain  organs  might  have  to  be  removed 
to  save  her  life  and  she  then  gave  her  consent  to  such  operation, 
then  the  previous  representations  are  immaterial  and  such  pre- 
vious representations  will  not  render  the  defendants  or  either 
of  them  liable,  because  all  such  previous  representations  were 
waived  by  her,  if,  after  learning  that  a  more  serious  operation 
was  necessary,  she  gave  her  consent. 

5.  Authority  given  to  do  what  reasonably  necessary  to  save 
life.  If  the  plaintiff  here  could  not  appreciate  and  did  not 
know  her  own  condition,  or  the  ailments  with  which  she  was 
afflicted,  and  if  she  placed  herself  in  the  care  and  hands  of  the 
defendants  here  and  authorized  them  to  do  what  was  reasonably 
necessary  from  their  knowledge  and  skill  as  physicians  to  save 
her  life  or  to  restore  her  health,  then  such  a  submission  on  her 
part,  in  the  absence  of  any  other  restrictions  upon  the  physician, 
demanded  and  made  it  incumbent  upon  those  physicians  to  do 
such  things  and  perform  such  operation  as  bv  the  nature  of 
the  ease  and  by  the  exercise  of  proper  skill  and  knowledge  as 
physieians,  was  necessary  to  save  her  life,  or  to  protect  her  from 
continued  and  serious  illness.     And  the  failure  of  physicians, 


MALPRACTICE.  1779 

under  such  circumstances  to  have  so  operated  would  have  been 
valid  grounds  for  a  suit  against  them  in  malpractice.  Consent 
may  be  given  either  by  words  or  you  may  find  consent  to  have 
been  given  by  acts.  This  question  of  consent  is  to  be  deter- 
mined by  you  from  all  the  facts  and  circumstances  surrounding 
the  operation  itself,  and  those  which  precede  as  well  as  those 
which  follow  it.  If  the  consent  of  plaintiff  was  given  for  an 
operation  to  a  mere  limited  extent,  and  she  either  forbid  or  did 
not  consent  to  the  removal  of  the  other  parts  of  her  body,  then 
the  physicians  are  bound  to  follow  that  limitation  and  the  con- 
sent to  a  limited  treatment  could  not  be  interposed  to  excuse  the 
defendants  or  justify  them  in  performing  some  other  and  dif- 
ferent operation. 

6.  Patient  chargeable  with  acts  of  preparation  for  operation. 
With  reference  to  the  testimony  and  evidence  here  concerning 
the  nature  and  extent  of  the  preparation  made  for  this  opera- 
tion, the  plaintiff  is  chargeable  with  a  knowledge  and  under- 
standing of  so  much  and  to  such  extent  as  she  under  all  the  facts 
and  circumstances  surrounding  her  ought  and  necessarily  would 
know  and  understand,  and  no  further. 

In  speaking  of  consent,  I  refer  only  to  the  consent  of  the 
plaintiff ;  as  the  consent  of  any  other  person,  relative  or  friends 
of  the  plaintiff,  was  not  necessary. 

7.  Care  by  physician  after  operation.  As  to  the  claim  of 
negligence  in  the  care  and  treatment  of  the  plaintiff  after  the 
operation  these  physicians  are  chargeable  with  that  degree  of 
care  and  skill  which  physicians  and  surgeons,  exercising  care, 
would  ordinarily  exercise  in  the  treatment  of  a  patient  under 
similar  circumstances. 

In  determining  whether  the  defendants  exercised  proper  care 
and  skill,  you  will  consider  tin-  nature  of  this  operation,  and  its 
results,  and  if  you  find  they  exercised  such  care  and  skill  in 
the  treatment  of  the  wound  after  1lie  operation  as  surgeons  of 
ordinary  skill  and  caution  would  exercise  for  the  cure  of  a 
patient  under  similar  circumstances,  then  there  is  no  liability 
on  account  of  the  treatment  of  the  wound. 


1780  INSTRUCTIONS  TO  JURY. 

You  are  not  to  conclude  from  the  mere  fact  that  the  plaintiff 
has  a  rupture  and  suffers  from  other  ill  effects  of  the  operation 
that  these  effects  are  due  to  the  negligence  of  the  defendants  in 
treating  the  wound.  If  such  effects  resulted  not  from  negligent 
treatment,  but  are  the  results  of  the  nature  of  the  operation 
itself,  and  you  find  the  plaintiff  consented  to  the  operation,  then 
there  is  no  liability  on  account  of  the  after  treatment  of  the 
wound.  If  such  effects  are  due  to  the  negligence  of  the  defend- 
ant as  alleged,  then  they  are  liable.1 

i  Cuthriell  v.  The  Protestant  Hospital,  a  corporation,  and  W.  J.  M.  and 
J.  W.  B.     Court  of  Com.  Pleas,  Franklin  Co.,  0.     Bigger,  J. 

On  subject  of  consent  to  operation,  see  Bennan  v.  Parsonnet,  83  Atl.  948 
(Sup.  Ct.  N.  J.),  citing  Kinkead,  on  Torts,  sec.  375.  See  also 
111  Am.  St.  468. 

Sec.  2000.    Liability  of  physician  for  injuries  caused  by  use 
of  X-Rays. 

The  jury  is  instructed  that  when  a  physician  holds  himself 
out  to  the  public  as  qualified  in  the  use  of  the  X-ray  for  treat- 
ment and  diagnosis  of  ailments,  the  law  implies  on  his  part  the 
promise  and  duty  to  exercise  reasonable  skill  and  care  in  such 
use.  In  other  words,  he  undertakes  to  use  in  this  particular 
branch  of  the  profession  the  same  degree  of  care  and  skill  re- 
quired of  physicians  and  surgeons  generally  and  ordinarily  used 
in  other  branches  of  the  profession.  The  use  of  the  X-ray  in 
the  diagnosis  and  treatment  of  human  ills  is  recognized  and 
practised  by  the  medical  profession,  and  therefore  the  same  rule 
and  measure  of  care  is  required  of  such  practitioners  in  this 
line  of  the  profession  as  is  applied  to  other  practitioners.1 

i  Sweeney  v.  Erving,  35  App.  Cas.  (D.  C.)  57;  Hales  v.  Raines,  146  Mo. 
App.  232;  Shockley  v.  Tucker,  127  la.  456,  103  N.  W.  360,  Am. 
Ann.  Cas.  1912,  C.  p.  1124,  note.  Sauers  v.  Smits,  49  Wash.  557, 
95  Pac.  1097,  17  L.  R.  A.  (N.S.)    1242. 


CHAPTER   CXVI. 
MANSLAUGHTER. 

(See  also  Homicide,  Murder  First  and  Second  Degree.) 

SEC.  SEC. 

2001.  Manslaughter — By    negligent       2003.     Negligent  driving  of  autonio- 

driving    of    automobile —  bile  as  forbidden  by  stat- 

A   complete   form   of   in-  utes      constitutes      man- 

structions    (See   detailed  slaughter, 

headings    of    subjects    in  2004.     Contributory     negligence     of 

text).  deceased    no    defense    in 

2002.  Charge   of   manslaughter   by  manslaughter   caused   by 

one  attempting  to  arrest  neglect  of   driver   of   au- 

another.      (See    headings  tomobile. 

at  sectional  heading.) 

Sec.  2001.     Manslaughter — By  negligent   driving  of  automo- 
bile— A  complete  form  of  instructions. 

1.  Introduction. 

2.  Plea,  and  burden  of  proof. 

3.  Presumption  of  innocence. 

4.  Reasonable  doubt. 

5.  Credibility  of  witnesses. 

6.  Same — Opinion  as  to  speed  not  deemed  contradictory  as 

affecting  credibility. 

7.  The  charge  in  the  indictment. 

8.  Lair  of  manslaughter — Statute — Meaning  of  "unlawfully 

/»■  ills ' ' — Kinds — In  vol  it  ntary — Malice — In  t<  n(. 

9.  Unlawful  act.  one  prohibited  by  lair. 

10.  Statute  as  to  speed  of  automobile. 

11.  Opinion  evidence  as  to  speed. 

12.  Alternative  finding  as  to  ral<   of  speed. 

13.  Violation  of  statute  by  excessive  speed  must  be  proximate 

canst  of  (hath. 

14.  May  find  defendant  guilty  of  assault  and  battery. 

1781 


1782  INSTRUCTIONS  TO  JURY. 

1.  Introduction.  Gentlemen  of  the  jury:  You  have  heard 
the  evidence  and  the  arguments  of  counsel  and  it  is  now  the 
duty  of  the  court  to  give  you  such  instructions  as  to  the  law 
applicable  to  the  evidence  in  this  case  which  will  guide  you  in 
the  determination  of  the  issues  of  fact  presented  to  you  for 
decision. 

2.  Plea,  and  burden  of  proof.  The  defendant  is  indicted  for 
the  crime  of  manslaughter.  He  has  entered  a  plea  of  not  guilty. 
That  is,  he  denies  each  and  all  of  the  essential  elements  charged 
in  the  indictment  which  constitutes  the  crime  of  manslaughter. 

That  imposes  upon  the  state  the  burden  of  proving  all  those 
elements  to  your  satisfaction  and  beyond  a  reasonable  doubt, 
which  is  the  degree  and  measure  of  proof  necessary  to  be  ap- 
plied by  you  in  your  consideration  of  the  case  in  arriving  at  a 
verdict. 

3.  Presumption  of  innocence.  The  law  presumes,  however, 
in  all  criminal  cases  that  the  defendant  is  innocent  of  the  crime 
until  he  is  proven  guilty ;  that  is,  it  is  your  duty  under  the  law, 
notwithstanding  the  indictment,  to  presume  that  the  defendant 
is  innocent  unless  or  until  the  evidence  rebuts  that  presumption. 
The  theory  of  this  rule  of  presumption  is  that  you  enter  upon 
the  consideration  of  the  case,  as  if  the  defendant  is  innocent, 
so  that  you  may  fairly  and  impartially  consider  the  evidence, 
without  bias,  prejudice  or  suspicion  because  of  the  indictment. 
If  the  evidence  overcomes  this  presumption,  then  the  rule  of 
evidence  to  be  applied  by  you  is  the  reasonable  doubt  rule. 

4.  Reasonable  doubt.  A  reasonable  doubt  may  be  such  state 
of  mind  on  the  part  of  the  jurors,  after  having  fairly  and 
impartially  weighed  and  considered  all  the  evidence,  that  you 
may  have  an  honest,  substantial  feeling  of  uncertainty  or  doubt 
as  to  the  guilt  of  the  accused,  which  rests  upon  some  reasonable 
ground  disclosed  by  the  evidence.  If  there  is  nothing  in  the 
evidence  that  may  fairly  and  reasonably  cause  you  to  have  such 
a  doubt,  but,  on  the  contrary,  you  may  have  such  feeling  in 
your  minds  that  you  have  an  abiding  conviction  of  the  guilt  of 
the  accused,  it  will  then  be  your  duty  to  convict  him. 


MANSLAUGHTER.  1783 

If,  however,  you  entertain  a  reasonable  doubt,  which  is  sub- 
stantial and  not  speculative,  or  captious,  then  you  should  acquit 
him. 

5.  Credibility  of  witnesses.  The  credibility  of  witnesses  is 
within  your  exclusive  province  to  determine.  You  may  con- 
sider their  demeanor  while  on  the  witness  stand,  their  interest, 
if  any,  they  have,  or  want  of  interest,  any  bias  or  prejudice 
which  they  may  display,  if  you  find  that  they  do  show  such 
qualities,  their  ability  to  learn,  know  and  recite  the  matters  to 
which  they  may  testify,  the  reasonableness  or  unreasonableness 
of  their  statements,  the  probability  or  improbability  of  their 
testimony  in  the  light  of  all  the  facts  and  circumstances  dis- 
closed by  the  evidence. 

6.  Same — Opinion  as  to  speed  not  deemed  contradictory  as 
affecting  credibility.  The  law  in  respect  to  the  opinions  of 
witnesses  concerning  a  question  of  speed  is  such  that  this  class 
of  testimony  is  of  such  character  and  nature  that  the  testimony 
of  witnesses  concerning  rates  of  speed  is  not  to  be  deemed  con- 
tradicted for  purposes  of  affecting  their  credibility,  so  that  their 
credibility  is  not  necessarily  affected  by  the  testimony  of  others 
whose  opinions  are  different.1 

7.  The  charge  in  the  indictment.  The  indictment  in  this  case 
charges  that  the  defendant,  W.  J.  W.,  late  of  said  county,  on  or 

about  the  day  of  ,  in  the  year  of  our  Lord  one 

thousand  nine  hundred  and ,  within  the  county  of 

aforesaid,  unlawfully  did  kill  one  H.  IT.,  tben  and  there  being. 

8.  Law  of  manslaughter — Statute — Meaning  of  "unlawfully 
kills" — Kinds — Involuntary.  The  jury  will  now  be  instructed 
concerning  the  law  relative  to  the  crime  of  manslaughter. 

The  statute  of  Ohio  reads  as  follows: 

"Whoever  (excepting  in  the  preceding  sections  denning  mur- 
der in  the  first  and  second  degrees)  unlawfully  kills  another  is 
guilty  of  manslaughter."2 

"What  constitutes  manslaughter  under  the  statute,  therefore 
depends  upon  what  the  word  "unlawfully"  means. 

i  Monro  on  Facts,  sec.  120;   Railway  v.  Waxelbaum,   111   Ga.  S12. 
=  Code,  roc.  12404. 


1784  INSTRUCTIONS  TO  JURY. 

We  construe  the  meaning  of  the  word  by  the  principles  of  the 
common  law, — the  law  established  by  the  courts, — before  and 
since  the  enactment  of  statutes.  The  common  law  definition  of 
manslaughter  was  as  follows :  ' '  The  unlawful  killing  of  another, 
without  malice,  either  express  or  implied ;  which  may  be  either 
voluntarily,  upon  a  sudden  heat,  or  inadvertently,  but  in  the 
commission  of  some  unlawful  act."3  The  courts  have  held  that 
the  statute  originally  enacted  in  this  state  was  the  crime  of 
manslaughter  as  it  was  understood  at  the  common  law.4  And 
while  this  statute  has  been  since  changed  to  read  in  its  present 
form,  the  evident  construction  placed  upon  it  is  such  as  is 
given  in  the  light  of  the  common  law,  and  the  court  of  last 
resort  in  this  state  as  late  as  1902  has  declared  that  the  present 
section  defining  manslaughter  is  not  different  in  substance  from 
the  original  enactment  in  this  state  which  was  the  common  law 
definition  above  stated ;  that  the  present  section  is  not  different 
in  substance  and  meaning  from  the  common  law,  and  that  to 
ascertain  the  elements  of  the  crime  of  manslaughter,  we  must 
look  to  the  original  enactment  as  it  stood  before  revisions  of 
statutes.  Therefore,  in  any  case  of  manslaughter,  and  in  the 
one  at  bar,  it  is  encumbent  upon  the  state  to  show  that  the 
killing  was  done  unintentionally  while  the  defendant  was  in  the 
commission  of  some  unlawful  act.  We  have,  therefore,  the  two 
kinds  of  manslaughter,  voluntary  and  involuntary. 

The  kind  of  manslaughter  charged  in  this  indictment  is  in- 
voluntary, or  an  inadvertent  killing  while  the  person  charged, 
was  engaged  in  the  commission  of  an  unlawful  act. 

In  this  kind  of  manslaughter,  malice  is  not  essential,  nor  is 
intent  to  kill  essential.  The  only  kind  of  intent  involved  in 
involuntary  manslaughter  is  such  as  may  be  inferred  by  the 
jury  from  the  mere  commission  of  an  unlawful  act.  And  the 
rule  of  law  in  such  cases  is  that  every  one  intends  the  natural 
and  ordinary  consequences  of  his  own  act 

9.  Unlawful  act,  one  prohibited  by  lav:  Now,  the  unlawful 
act  contemplated  by  the  statute  describing  the  crime  of  man- 


3  Sutcliffe  v.  State,  18  Ohio,  469,  476. 
*Id. 


MANSLAUGHTER.  1785 

slaughter,  the  commission  of  which  gives  color  and  character 
to  the  unintentional  killing,  is  an  act  prohibited  by  law;  that 
is,  by  a  statute  enacted  by  the  legislature  of  the  state.5  No 
act  or  omission  is  punishable  as  a  crime  in  Ohio,  unless  the  same 
is  specially  enjoined  or  prohibited  by  the  statute  of  the  state." 
The  word  "unlawful"  used  in  the  statute  meaning  the  violation 
of  a  statute  will  embrace  and  include  an  unintentional  killing 
if  such  act  be  committed  while  engaged  in  the  violation  of  the 
provision  of  a  statute  making  the  acts  forbidden  penal  or  crim- 
inal in  their  nature. 

10.  Statute  as  to  speed  of  automobiles.  Now  the  violation  of 
the  statute  of  the  state  upon  which  this  prosecution  is  based,  in 
addition  to  that  prescribing  the  crime  of  manslaughter,  is  sec- 
tion 12,604  of  the  code,  which  provides  that: 

"Whoever  operates  a  *  *  *  motor  vehicle  at  a  greater 
speed  than  eight  miles  an  hour  in  the  business  and  closely  built 
up  portions  of  a  municipality,  or  more  than  fifteen  miles  an 
hour  in  other  portions  thereof,  shall  be  fined  not  more  than 
$25.00,  and  for  a  second  offense  shall  be  fined  not  less  than 
$25.00  nor  more  than  $50.00." 

Excessive  violations  of  speed,  therefore,  are  made  by  this 
statute  misdemeanors. 

The  words  "motor  vehicle"  and  "automobile"  are  synony- 
mous ;   that  is,  they  mean  the  same  thing.7 

The  claim  of  the  state  is  that  the  cause  of  death  of  II.  II.  was 
due  to  the  alleged  violation  of  the  law  regulating  the  speed  of 
automobiles,  by  running  at  a  speed  in  excess  of  that  prescribed 
by  the  statute. 

On  the  other  hand,  the  defendant  denies  that  be  was  running 
in  excess  of  such  speed.  And  the  defendant  claims  in  evidence 
that  the  death  of  H.  II.  was  caused  by  his  own  act  in  running 
across  the  street. 

The  jury  will  lie  called  upon  to  determine  whether  the  de- 
fendant did  or  did  not  at  the  time  charged  exceed  the  limit  of 


b  Johnson  v.  State,  00  O.  S.  59,  69. 

•  Smith  v.  State,  L2  '  >.  S.    166,   169,  66  O.  S.  69. 

7  Brown  v.  State,   10  X.  P.    (N.S.)    238. 


1786  INSTRUCTIONS  TO  JURY. 

speed  prescribed  by  statute,  and  if  you  find  that  he  did,  whether 
such  act  of  alleged  violation  of  the  statute  as  to  speed,  was  either 
a  sole  or  contributing  cause  of  the  collision  of  his  automobile 
with  the  boy,  or  whether  notwithstanding  the  alleged  excessive 
rate  of  speed,  the  injury  or  collision  with  the  boy  was  unavoid- 
able, or  whether  it  was  due  to  the  sole  act  of  the  boy. 

11.  Opinion  evidence  as  to  speed.  Under  the  law  an  adult  of 
reasonable  intelligence  and  ordinary  experience  who  observes 
the  passing  of  an  automobile  just  before  an  accident  occurs  is 
presumptively  capable,  without  proof  of  further  qualification, 
to  give  his  opinion  as  to  the  speed  of  the  automobile.8  So  the 
law  is  that  an  ordinary  observer,  acquainted  with  automobiles, 
but  with  neither  practical  nor  technical  knowledge  of  their  con- 
struction or  management  may  be  permitted  to  give  his  estimate 
as  to  the  rate  of  speed  at  which  a  machine  was  proceeding  at  a 
given  time.9 

While  the  law  is  that  such  persons  are  competent  to  give  an 
estimate  as  to  the  speed,  the  probative  force  of  such  opinion, 
estimate,  or  judgment  is  for  the  jury  to  determine.  The  law 
being  that  such  evidence  is  received  with  caution,  it  is  the  duty 
of  the  court  to  state  to  the  jury  that  in  the  consideration  of  this 
testimony  and  the  weight  which  you  may  give  it,  you  should 
consider  the  experience,  training  or  acquired  aptitude,  or  want 
thereof,  for  the  giving  of  a  judgment  of  speed,  as  well  as  the 
degree  of  care  and  attention  which  a  witness  may  have  been 
devoting  to  the  matter  of  speed  at  the  time  he  arrived  at  his 
opinion.10 

The  law  does  not  permit  courts  to  pronounce  judgment  or 
sentence  for  consequences  of  the  violation  of  the  inhibitions  of 
the  statute  as  to  the  rates  of  speed  on  opinions  based  on  con- 
jecture or  guess,  but  demands  that  the  basis  thereof  shall  be 
facts.11  Nor  does  the  law  sanction  or  permit  a  description  of 
speed  as  "high,"  because  that  is  nothing  to  the  purpose  even 


«  Chamberlain  on  Ev.,  sec.  208. 

»  84  Kan.  608. 

io  Chamberlain  on  Ev..  see.  2086,  p.  2767. 

ii  Id.,  sec.  26,  p.  2767;  Moore  on  Facts,  sec.  120,  187  Pa.  St.  451. 


MANSLAUGHTER.  1787 

when  the  specific  inquiry  is  as  to  the  rate  of  travel.  The  law 
regards  such  testimony  as  too  uncertain  for  judicial  action.12 
Therefore,  any  testimony  of  this  kind  will  be  disregarded  by 
the  jury  in  this  case. 

On  the  other  hand,  it  is  competent  for  the  jury  to  consider 
the  fact  as  to  the  distance  within  which  the  machine  in  this  case 
is  claimed  to  have  stopped  after  the  collision  with  the  boy  in 
arriving  at  the  conclusion  concerning  the  rate  of  speed  at  which 
the  defendant's  machine  was  run. 

The  jury  may  also  consider  the  opportunity  which  the  non- 
expert witnesses  may  have  had  which  enabled  them  to  give  their 
judgment,  the  attention  they  may  have  been  given  to  the  speed 
of  the  automobile,  when  their  attention  was  first  given  to  the 
same,  and  the  position  in  which  such  witness  or  witnesses  were 
in  at  the  time  when  they  observed  the  machine. 

It  is  also  proper  and  within  the  province  of  the  jury  to  con- 
sider whether  a  witness  has  had  experience  in  driving  an  auto- 
mobile, or  whether  he  has  not  had  such  experience,  or  whether 
he  has  or  has  not  had  experience  in  riding  in  an  automobile  or 
whether  he  has  or  has  not  had  an  opportunity  in  observing  and 
noting  the  rates  of  speed  at  which  automobiles  have  been  run. 

12.  Alternative  finding  as  to  rate  of  speed.  If  you  should 
have  a  reasonable  doubt  from  all  of  the  evidence,  whether  the 
defendant  at  the  time  he  was  driving  his  machine  at  a  rate  of 
speed  greater  than  fifteen  miles  an  hour,  it  will  then  be  your 
duty  to  render  a  verdict  of  not  guilty. 

But  if  you  should  have  an  abiding  conviction  that  defendant 
was  driving  his  machine  as  charged  at  a  greater  speed  than 
fifteen  miles  an  hour,  then  it  will  be  your  duty  to  further  find 
whether  the  fact  of  the  defendant's  running  his  machine  at  an 
unlawful  rate  of  speed  was  either  the  sole  cause  of  the  death, 
or  whether  it  was  a  contributing  cause  of  the  death  of  the  boy. 

13.  Violation  of  statute  by  excessive  speed  must  be  proximate 
cause  of  death.  The  court  instructs  the  jury  that  the  law  does 
not  make  the  defendant  guilty  of  manslaughter  even  if  h<>  was 


12  Nicholson  v.  Traction  Co.,   14  X.   P.    (N.S.)    177.  23  0.   D.  ;   Mooro 

on  Facts,  sec.  406,   107    Pa.  St.  4.'1H,   163   Pa.   St.    102. 


1788  INSTRUCTIONS  TO  JURY. 

running  his  automobile  more  than  fifteen  miles  an  hour  in  viola- 
tion of  the  statute  at  the  time  the  boy  was  run  into  and  killed, 
if  the  act  of  H.  H.  himself  was  the  sole  cause  of  his  death. 

So,  therefore,  though  the  jury  should  find  that  the  defendant 
was  running  at  an  unlawful  rate  of  speed,  still  if  you  rind  that 
the  act  of  H.  H.  in  passing  across  the  street,  in  whatever  manner 
you  may  find  from  the  evidence  that  he  did  pass  across  the 
street',  was  the  sole  cause  of  his  death,  then  the  jury  should  acquit 
the  defendant. 

But  the  law  would  make  the  defendant  responsible  and  liable 
even  though  the  boy  himself  was  guilty  of  conduct  contributing 
to  his  own  death,  if  he, — the  defendant, — was  running  at  an 
unlawful  rate  of  speed,  and  such  unlawful  act  contributed  to 
the  death  of  H.  H. 

Therefore,  it  follows  that  if  the  jury  finds  that  the  boy  him- 
self by  his  own  conduct  endangered  his  own  safety,  still  if  you 
find  that  the  defendant  was  running  his  machine  at  an  unlawful 
rate  of  speed  and  that  such  unlawful  act  on  his  part  contributed, 
not  necessarily  as  a  sole  cause,  but  as  a  contributing,  proximate 
cause,  your  verdict  in  such  case  should  be  one  of  guilty. 

If  the  jury  should  find  the  defendant  not  guilty  of  man- 
slaughter, you  may  find  him  guilty  of  either  assault,  or  of 
assault  and  battery,  if  in  your  opinion  the  evidence  warrants 
such  a  verdict. 

14.  May*  find  defendant* guilty  of  assault  and  battery.  The 
law  is  that  one  who  intentionally  violates  the  statute  prohibiting 
the  driving  of  an  automobile  beyond  fifteen  miles  an  hour  in  a 
municipality  in  portions  thereof  other  than  in  the  business  and 
closely  built  up  portions  of  such  municipality  and  who  while 
so  violating  such  statute  runs  into  and  strikes  a  person  right- 
fully passing  upon  or  across  the  street,  is  guilty  of  assault  and 
battery,  notwithstanding  the  injury  was  unintentionally  in- 
flicted.13 

If,  therefore,  the  jury  should  find  the  defendant  not  guilty 
of  manslaughter,  you  may,  if  you  believe  the  evidence  warrants 
it,  find  him  guilty  of  assault  and  battery,  or  of  assault  alone. 


"Fishnick  v.  State,  10  N.  P.   (N.S.)    110. 


MANSLAUGHTER.  1789 

If  you  should  find  him  guilty  of  any  crime  you  will  say  so 
by  your  verdict.14 
i*  State  v.  Woodlin,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  2002.     Charge  of  manslaughter  by  one  attempting  to  ar- 
rest another  for  felony. 

1.  The  charge. 

2.  Manslaughter  defined. 

3.  May  make  arrest  for  murder  on  reasonable  cause  without 

warrant. 

4.  When  right  to  kill  in  arresting  for  felony  justified. 

5.  Claim  of  self-defense. 

1.  The  charge.  The  specific  charge  in  the  indictment  is  as 
follows : 

That  S.  H.  on  or  about  the day  of ,  in  the  year 

19 — ,   at  the   county   of  aforesaid   did   unlawfully   kill 

G.  M.,  then  and  there  being. 

The  statute  of  this  state  defines  manslaughter  as  fonows : 

2.  Manslaughter  defined.  Whoever  unlawfully  kills  another 
except  as  provided  in  the  three  preceding  sections,  is  guilty  of 
manslaughter. 

The  three  preceding  sections  of  the  statutes  referred  to  in 
this  definition  of  manslaughter  are  those  sections  of  the  statutes 
which  define  murder  in  the  first  and  murder  in  the  second  de- 
gree. It  is  not  necessary  that  the  killing,  to  constitute  man- 
slaughter, should  be  done  with  deliberation  and  premeditation, 
nor  done  maliciously;  it  is  incumbent  upon  the  state  to  prove 
that  the  killing  was  done  either  upon  sudden  quarrel  or  inten- 
tionally while  the  shiver  was  in  the  commission  of  some  unlawful 
act.  In  this  case  the  person  killed  was  not  guilty  of  the  crime 
for  which  the  defendant  was  seeking  to  arrest  him,  but  it  is  the 
claim  of  the  defendant  that  he  believed  him  to  be  one  N.  F., 
who  \\;is  charged  with  having  committed  a  murder  shortly 
before  that  in  this  county,  and  that  he  believed  that  M.  was  the 


1790  INSTRUCTIONS  TO  JURY. 

man  guilty  of  the  murder.  The  defendant  did  not  have  a  war- 
rant for  the  arrest  of  the  deceased,  or  for  the  arrest  of  any  one 
charged  with  the  commission  of  that  crime.  In  a  sudden  affray 
between  the  defendant  and  the  deceased  M.,  M.  was  killed. 

It  becomes  important,  therefore,  for  you  to  determine  whether 
or  not  the  attempted  arrest  of  M.  was  lawful  under  the  circum- 
stances upon  the  part  of  this  defendant. 

3.  May  make  arrest  for  murder  on  reasonable  cause  without 
warrant.  Where  the  crime  of  murder  has  been  committed  it  is 
lawful  for  any  person  without  a  warrant  to  arrest  another  whom 
he  believes  and  has  reasonable  cause  to  believe  is  guilty  of  the 
offense,  and  to  detain  him  until  a  legal  warrant  can  be  obtained. 
You  will  observe  that  it  is  not  essential  that  the  person  arrested 
should  in  fact  have  committed  the  crime ;  it  is  essential,  how- 
ever, that  the  defendant  believe,  and  further,  had  reasonable 
ground  to  believe  that  the  person  he  was  trying  to  arrest  was 
the  one  who  committed  the  crime.  It  is  not  enough,  you  will 
observe,  that  he  believed,  but  before  the  defendant  can  justify 
an  attempt  to  arrest  the  deceased  without  a  warrant — who  was 
not  guilty  of  the  crime  for  which  he  was  seeking  to  arrest  him 
— it  must  further  appear  that  under  all  the  circumstances  he 
had  reasonable  cause  to  believe  M.  to  be  the  man  who  had  com- 
mitted the  murder. 

It  is  essential  to  a  lawful  arrest  without  a  warrant  that  it  be 
shown  that  a  felony  has  been  committed,  and  murder  is  a  felony. 

If  you  find  that  at  the  time  the  defendant  attempted  to  arrest 
M.,  a  murder  had  been  committed,  and  that  he  believed  in  good 
faith,  and  further,  that  he  had  reasonable  ground  to  believe  that 
M.  was  guilty  of  the  crime  of  murder,  then  he  was  justified  in 
trying  to  arrest  him  although  he  was  mistaken. 

If,  however,  you  find  that  the  defendant  did  not  believe  in 
good  faith,  or  that  although  he  believed  it,  yet  that  he  did  not 
under  all  circumstances  have  reasonable  cause  to  believe  it,  then 
his  act  in  attempting  to  arrest  an  innocent  man  for  the  com- 
mission of  murder  was  not  justifiable  and  if  in  trying  to  arrest 


MANSLAUGHTER.  1791 

M.  under  such  circumstances  he  shot  and  killed  M.,  he  is  guilty 
of  the  crime  of  manslaughter  and  you  should  so  find. 

Whether  the  defendant  did  in  good  faith  believe  that  M.  was 
the  man  who  had  committed  this  murder,  and  whether  he  had 
reasonable  cause  to  believe  it,  are  questions  of  fact  which  you, 
gentlemen  of  the  jury,  must  determine  from  all  the  evidence 
in  the  case. 

If  you  find  the  fact  to  be  that  the  defendant  believed  and 
that  he  had  reasonable  cause  to  believe  that  M.  was  guilty  of 
the  murder,  then,  as  I  have  said,  his  attempt  to  arrest  M.  was 
not  unlawful  and  he  is  not  guilty  unless  the  means  employed  by 
him  to  effect  the  arrest  were  unlawful. 

4.  When  right  to  kill  in  arresting  for  felony  justified.  The 
law  does  not  clothe  an  officer  or  other  person  who  is  rightly 
trying  to  arrest  another,  with  authority  to  judge  arbitrarily  of 
the  necessity  of  killing  the  person  to  secure  him.  lie  can  not 
kill  in  trying  to  make  an  arrest  unless  there  is  necessity  for  it. 
lie  is  not  justified  in  using  unnecessary  force  or  in  resorting 
to  means  likely  to  take  the  life  of  the  person  he  is  attempting 
to  arrest  if  the  arrest  could  be  effected  otherwise. 

If  you  find  the  defendant  was  justified  in  attempting  to  arrest 
M.,  it  becomes  your  duty  to  determine  the  further  question  as 
to  whether  or  not  the  means  he  employed  to  make  the  arrest 
were  under  all  the  circumstances  existing  at  that  time  necessary 
to  make  his  arrest.  If  you  find  he  was  justified  in  attempting 
to  arrest  the  deceased,  by  reason  of  his  belief  of  his  guilt  of  the 
crime  of  murder— that  is,  believing  that  he  was  F.,  whom  he 
believed  to  be  guilty  of  the  murder,  and  because  of  his  having 
reasonable  cause  to  believe  it— then  he  would  be  justified  in 
usintf  such  force  and  such  only  as,  having  regard  to  all  the  cir- 
cumstances surrounding  him  at  the  time,  would  he  reasonably 
necessary  to  effect  the  arrest,  even  to  the  taking  of  the  life  of 
the  person  he  was  trying  to  arrest.  If  you  find  that  was  tin' 
only  means  by  which  it  could  be  effected,  a  homicide  under  such 
circumstances  would  be  justifiable  and  your  verdict  should  be 
not  guilty. 


1792  INSTRUCTIONS  TO  JURY. 

If,  however,  you  find  that  under  all  the  circumstances  it  was 
not  necessary  to  kill  M.  in  order  to  effect  his  arrest,  although 
the  defendant  may  have  believed  him  to  be  the  guilty  man  and 
had  reasonable  cause  to  believe  it,  his  killing  under  such  cir- 
cumstances would  be  unlawful  and  the  defendant  would  be 
guilty  of  the  crime  of  manslaughter. 

5.  Claim  of  self-defense.  The  defendant  claims  further  that 
he  acted  in  self-defense.  Homicide  is  justifiable  on  the  ground 
of  self-defense  where  the  slayer  in  the  careful  and  proper  use 
of  his  faculties,  in  good  faith  believes  and  has  reasonable  ground 
to  believe  that  he  is  in  imminent  danger  of  death  or  great  bodily 
injury  and  that  his  only  means  of  escape  from  such  danger  will 
be  by  taking  the  life  of  his  assailant,  and  this  is  true  although 
he  may  be  mistaken  as  to  the  existence  or  imminence  of  the 
danger.  The  existence  of  the  danger  is  not  indispensable,  but 
the  defendant's  belief  of  its  existence  is  indispensable,  and  the 
further  fact  is  indispensable  that  there  must  have  been  reason- 
able ground  for  the  belief.  Furthermore,  one  who  brings  on 
a  conflict  without  just  cause  or  excuse  can  not  justify  on  the 
ground  of  self-defense,  even  though  he  may  be  placed  in  a  posi- 
tion of  great  peril,  but  must  himself  first  withdraw  from  the 
conflict  thus  unnecessarily  and  unjustifiably  brought  on  by  him, 
before  he  can  assert  the  right  of  self-defense. 

So  in  this  case  if  you  find  the  defendant  was  not  justified  in 
attempting  to  make  this  arrest,  then  having  attempted  to  do  an 
unlawful  thing,  if  you  find  that  the  defendant  first  made  an 
assault  on  M.  for  the  purpose  of  arresting  him  and  in  the  pro- 
gress of  the  conflict  thus  brought  on  he  killed  M.,  the  killing 
would  constitute  manslaughter.  If  the  defendant  merely  called 
to  the  deceased,  asking  him  to  stop,  and  before  the  defendant 
had  attempted  to  use  any  force  to  cause  the  arrest  or  to  make 
any  move  toward  the  using  of  force  to  cause  the  arrest,  M.  fired 
upon  the  defendant,  then  the  defendant  might  act  in  self- 
defense  under  the  rules  I  have  stated  to  you,  but  could  not  take 
the  life  of  the  deceased  unless  he  believed  and  had  good  reason 
to  believe  that  he  was  himself  about  to  be  killed  or  to  suffer 


MANSLAUGHTER.  1793 

great  bodily  injury  and  that  his  only  means  of  escape  was  to 
shoot  M. 

Where  one  seeks  to  justify  or  excuse  a  homicide  on  the  ground 
of  self-defense,  the  burden  of  proving  that  homicide  was  so 
excusable  or  justifiable  on  the  ground  of  self-defense  is  upon 
the  defendant  and  must  be  established  by  a  preponderance  of 
the  evidence. 

If  the  defendant  discovered  at  any  time  before  he  fired  the 
fatal  shot  that  the  person  he  was  trying  to  arrest  was  not  the 
man  whom  he  believed  guilty  of  the  murder,  then  it  was  his 
duty  at  once  to  desist  from  further  attempt  to  make  the  arrest 
and  his  conduct  in  shooting  the  defendant  after  such  discovery 
would  only  be  excusable  upon  the  ground  of  self-defense.  If 
after  such  discovery  he  believed  he  was  in  imminent  danger  of 
death  or  great  bodily  harm  and  that  his  only  means  of  escape 
was  in  shooting  M.,  he  would  be  justified  in  so  doing,  but  under 
no  other  circumstances. 

Under  such  an  indictment,  if  the  defendant  be  found  not 
guilty  of  manslaughter  he  may  be  found  guilty  of  assault  and 
battery  or  simply  assault.  Any  unlawful  violence  upon  the 
person  of  another  is  assault  and  battery  and  any  act  toward 
the  commission  of  a  battery  is  an  assault.1 
i  State  v.  Hardy,  Franklin  Co.  Com.  Pleas.     Bigger,  J. 

Sec.  2003.     Negligent  driving  of  automobile  as  forbidden  by 
statute  constitutes  manslaugher. 

One  who  wilfully  drives  an  automobile  in  a  public  street  of 
this  state  at  a  rate  of  speed  or  in  a  manner  expressly  forbidden 
by  statute,  and  thereby  causes  the  death  of  another  or  one  who, 
with  reckless  disregard  for  the  safety  of  others,  so  negligently 
drives  an  automobile  in  a  public  street  as  to  cause  the  death  of 
another  is  guilty  of  criminal  homicide,  or  manslaughter.1 

i  Approved    in    State    v.    Campbell,    82    Conn.    071,    18    Ann.    Cas.   236,   74 
Atl.  927,  135  Am.  St.  293. 


1794  INSTRUCTIONS  TO  JURY. 

Sec.  2004.  Contributory  negligence  of  deceased  no  defense  in 
manslaughter  caused  by  neglect  of  driver  of 
automobile. 

Contributory  negligence,  as  such,  is  not  available  as  a  defense 
in  a  criminal  prosecution  for  a  homicide  caused  by  the  [gross 
and  reckless  misconduct  of  the  accused]  or  [violation  of  a  duty 
required  or  imposed  upon  the  driver  of  an  automobile  by  the 
statute  of  this  state]  ;  although  the  decedent's  behavior  is  admis- 
sible in  evidence,  and  may  have  a  material  bearing  upon  the 
question  of  the  defendant's  guilt.  If,  however,  the  [culpable 
negligence]  or  [acts  in  specific  violation  of  the  statute  concerning 
the  running  of  the  automobile]  is  found  to  be  the  cause  of  the 
decedent's  death,  the  former  is  responsible  under  the  criminal 
[law]  or  [statute],  whether  the  decedent's  failure  to  use  due  or 
ordinary  care  contributed  to  his  injury  or  not.1 

iSchultz  v.   State,  89  Neb.   34,   130  N.  W.  972,  Am.  Ann.  Cas.   1912,  C. 
495   and  note,  p.   501. 


CHAPTER   CXVII. 

MARRIAGE. 

(See  Breach  of  Promise.) 

SEC.  SEC- 

2005.  What    constitutes    marriage.  2008.     Marriage    in    another    state 

2006.  Common  law  marriage.  forbidden     by     laws     of 

2007.  Legitimacy  of  children.  such  state — Followed  by 

cohabitation. 

Sec.  2005.    What  constitutes  marriage. 

In  the  case  of  Stowell  B.  Dudley  v.  Lucius  M.  Warren,  et  al. 
(title  in  supreme  court),  the  trial  court  refused  to  give  certain 
requests  as  to  what  constitutes  a  valid  marriage,  and  the  circuit 
court  reversed  the  trial  court  for  error  in  its  action  in  refusing 
requests,  holding  that : 

' '  The  court  erred  in  refusing  to  charge  the  jury  as  requested 
by  the  plaintiffs,  that,  in  determining  the  fact  whether  ML  W. 
and  E.  W.  were  husband  and  wife,  the  jury  are  not  authorized 
to  determine  that  question  upon  the  evidence  of  repute  alone, 
but  are  to  determine  it  by  all  the  evidence  submitted  to  them 
by  the  court,  giving  to  all  of  such  evidence  such  weight  as-  in 
their  judgment  it  is  entitled." 

The  judgment  of  the  circuit  court  was  affirmed  by  the  supreme 
court  without  report.1  We  give  the  requests  which  were  refused 
by  tbe  trial  court,  and  which  should  have  been  given. 

"If  the  jury  find  that  E.  W.  and  M.  W.  (openly  and  mutually 
entered  into  a  contract  to  become  husband  and  wife,  and  there- 
after) cohabitated  together  through  a  series  of  years  as  man  and 
wife,  that  E.  took  and  bore  the  name  of  W.  in  the  communities 
in  which  they  resided  together,  that  tbe  children  of  E.  were 
deemed  by  M.  W.  to  be  his  ebildrcn.  and  were  acknowledged  by 
him  to  be  such ;  that  M.  W.  bore  himself  towards  said  children 

1795 


1796  INSTRUCTIONS  TO  JURY. 

as  a  father;  that  they  were  educated,  supported,  and  provided 
for  by  him  as  his  children;  if  the  jury  further  find  that  E.  and 
M.  conducted  themselves  toward  each  other  as  man  and  wife, 
and  that  the  relations  between  them  were  apparently  respectable 
and  orderly,  then  a  presumption  of  marriage  between  the  parties 
arises,  and  these  circumstances  are  sufficient  to  warrant  an 
inference  by  the  jury  of  a  marriage  between  E.  and  M.  W. 

"In  determining  the  fact  whether  M.  W.  and  E.  W.  were 
husband  and  wife,  the  jury  are  not  authorized  to  determine  that 
question  upon  the  evidence  of  repute  alone,  but  are  to  determine 
it  by  all  the  evidence  submitted  to  them  by  the  court,  giving 
to  all  of  such  evidence  such  weight  as  in  their  judgment  it  may 
be  entitled. 

"To  constitute  a  valid  marriage  in  the  State  of  Ohio  no 
ceremony  or  form  of  celebration  of  marriage  is  required. 

' '  In  the  State  of  Ohio  the  mutual  consents  of  the  parties  then 
to  become  husband  and  wife,  interchanged  between  themselves 
and  followed  by  cohabitation,  is  sufficient  to  constitute  a 
marriage. 

"It  is  not  necessary  in  order  to  prove  a  marriage  that  an 
actual  exchange  of  consents  be  proven  to  have  taken  place 
between  the  parties,  but  the  jury  may  presume  that  consents 
were  exchanged  if  the  relations  existing  between  a  man  and 
woman  are  apparently  matrimonial."2 

i  See  27  W.  L.  B.  272. 

2  The  part  of  the  charge  inserted  in  parenthesis  probably  cures  a  defect 
in  the  request  and  under  Carmichael  v.  State,  12  0.  S.  553,  is 
good.  See  Johnson  v.  Dudley,  4  Oh.  Dec.  243,  248,  holding  that 
where  parties  originally  came  together  under  a  void  contract,  the 
marriage  may  be  proved  by  acts  of  recognition,  cohabitation,  birth 
of  children. 

Sec.  2006.     Common  law  marriage. 

You  are  all  aware  of  the  usual  and  ordinary  form  by  which 
marriages  are  celebrated,  and  of  such  marriages  there  is  little 
trouble  as  to  proof.  But  while  marriages  are  usually  celebrated 
in  this  formal  manner,  the  law  says  that  marriages  may  be  con- 


MARRIAGE.  1797 

summated  without  such  formal  ceremony,  and  if  the  necessary- 
requisites  exist  to  constitute  such  marriages  then  it  is  a  marriage, 
a  good  and  binding  one.  How  may  a  marriage  be  consummated 
without  the  usual  form?  I  say  to  you  if  a  man  and  woman 
agree  to  be  husband  and  wife,  and  live  together  as  husband 
and  wife,  hold  themselves  out  to  the  world  as  husband  and 
wife,  and  thereby  acquire  the  reputation  in  the  community  as 
being  husband  and  wife,  the  law  recognizes  them  as  husband 
and  wife,  though  there  never  was  any  formal  ceremony — that 
is,  the  law  says  that  marriage  is  a  civil  contract,  and  that  a  man 
and  woman  may  between  themselves  enter  into  such  a  contract, 
and  if  they  do  so  enter  into  such  a  contract  and  live  together 
as  husband  and  wife,  the  law  recognizes  them  as  legally  husband 
and  wife,  and  children  born  to  them  would  be  legitimate 
children.1 

"A  simple  agreement  between  one  man  and  one  woman,  who 
may  lawfully  so  contract,  that  they  will  take  one  another  as 
husband  and  wife  thenceforth,  and  that  they  will  sustain  this 
relation  thenceforth  so  long  as  they  both  shall  live,  the  mutual 
understanding  that  neither  one  nor  both  can  rescind  the  contract 
or  destroy  the  relation  followed  by  cohabitation;  when  they  do 
this,  they  are  married.  And  their  marriage  is  just  as  valid 
in  Ohio,  as  though  a  chime  of  bells  played  a  wedding  march, 
and  a  half  dozen  bishops  and  clergymen  assisted  at  the  celebra- 
tion before  a  thousand  people."2 

i  E.  P.  Green,  J.,  in  Stowell  B.  Dudley  v.  Lucius  M.  Warren,  supreme 
court,  Xo.  2S71. 

2  Approved  in  State  v.  Miller,  12  0.  C.  C.  02,  66. 

There  is  no  subject  fraught  with  so  much  uncertainty  as  t<>  what  con- 
stitutes a  valid  marriage.  Blackstonc  says:  '-Any  contract  made, 
per  verba  de  presenti  (by  words  of  the  present  time),  or  by  worda 
in  the  present  tense,  and  in  case  of  cohabitation  per  verba  </<' 
futuro  also  (by  words  <>f  future  acceptance)  between  persons  able 
to  contract,  was  before  the  late  acl  deemed  a  valid  marriage  t<> 
many  purposes,  and  the  parties  might  !"■  compelled  in  the  spiritual 
courts  to  celebrate  it   in  far!,   ecch  bmk  ." 

Kent  says:  "Xo  peculiar  ceremonies  ate  requisite  by  the  common  law  i<> 
the  valid  celebration  <>f  the  marriage.  The  consent  nf  the  parties 
is  all   that   is?   required,   and    n.§   marriage   is    said   to   be   a  contract 


1798  INSTRUCTIONS  TO  JURY. 

jure  gentium  (by  the  law  of  nations),  that  consent  is  all  that  is 
required  by  natural  or  public  law."  Nuptias  non  concubitus,  sed 
consensus  facit.  ("Consent,  not  consummation,  maketh  the  mar- 
riage.") "This  (says  Kent)  is  the  language  of  the  common  law 
and  canon  law,  and  of  common  reason."  This  language  would 
indicate,  therefore,  that  consent  merely  is  sufficient  to  constitute 
a  marriage,  and  that  if  parties  consent  and  then  cohabit,  thai  that 
constitutes  marriage. 

Blackstone's  language  indicates  that  consent  by  words  of  the  present 
tense,  without  a  formal  ceremony,  would  constitute  a  lawful  mar- 
riage, and  as  would  also  by  words  of  future  acceptance,  followed 
by  cohabitation.  And  Kent's  Commentaries  seem  to  agree  with 
that  law.  He  says  (p.  86,  2  Vol.)  :  "If  the  contract  be  made 
per  verba  de  presenti,  and  remains  without  cohabitation,  or  if  made 
per  verba  de  futuro,  and  be  followed  by  cohabitation,  or  consumma- 
tion, it  amounts  to  a  valid  marriage  in  the  absence  of  all  civil 
regulations  to  the  contrary,  and  which  the  parties  (being  compe- 
tent as  to  age  and  consent)  can  not  dissolve,  and  it  is  equally 
binding  as  if  made  in  facie  ecclesiae."  This  was  the  doctrine  of 
the  common  law,  and  also  of  the  canon  law,  which  governed  mar- 
riages  in  England  prior  to  the  marriage  act  of  26  George  II. 

There  seemed  to  have  been  considerable  conflict  between  the  civil  and 
ecclesiastic  authorities  in  some  of  the  English  cases,  the  inter- 
vention of  a  priest  and  a  formal  ceremony  being  assumed  to  be  a 
material  circumstance,  while  on  the  contrary  it  was  considered  in 
other  cases  that  a  promise  to  marry  followed  by  cohabitation,  and 
where  there  was  no  illicit  intercourse,  and  it  was  perfectly  clear 
that  a  marriage  was  intended,  was  a  valid  marriage.  Shelford 
on  Marriage  and   D.,   29,  989. 

Again  the  rule  of  the  common  law  seems  to  have  been  that  it  was  not 
necessary  that  the  consent  should  have  been  given  in  the  presence 
of  a  clergyman  in  order  to  give  it  validity,  though  it  was  con- 
sidered a  very  becoming  practice,  and  suitable  to  the  solemnity  of 
the  occasion.  The  consent  of  the  parties  could  have  been  declared 
before  a  magistrate,  or  simply  before  witnesses,  or  subsequently 
confessed  or  acknowledged,  or  the  marriage  could  have  been  in- 
ferred from  cohabitation  and  reputation  as  husband  and  wife, 
except  in  cases  of  civil  actions  for  adultery,  or  in  public  prosecu- 
tions for  bigamy  or  adultery,  in  which  cases  actual  proof  of  the 
marriage  was  required.     Kent's  Com.,  p.  88. 

Blackstone,  it  will  be  remembered,  says  that  consent  in  words  of  the 
present  tense,  or  acceptance  in  the  future,  followed  by  cohabitation, 
for  many  purposes  constituted  a  valid  marriage.  This  statement 
of  Blackstone  was  very  thoroughly  considered  in  Ohio  in  the  case 
of  Duncan  v.  Duncan,  10  0.  R.  186,  in  which  Brinkerhoff,  C.  J., 
said:  "What  these  many  purposes  for  which  a  marriage  per  verba 
de  futuro  were  valid  were,  does  not  seem  very  clear;  and  whatever 


MARRIAGE.  1799 

they  might  have  been,  it  seems  now  to  be  pretty  well  settled  that 
they  did  not  embrace  a  right  to  dower  on  the  part  of  the  wife, 
not  the  right  to  administer  on  his  estate,  or  to  her  property,  on 
the  part  of  the  husband,  nor  the  legitimacy  of  the  offspring,  nor 
the  avoiding  of  a  subsequent  marriage  pending  the  first." 

This  view  by  the  Ohio  Supreme  Court  is  supported  too  by  some  of  the  old 
English  cases.  So  that  after  all,  with  all  of  the  uncertainty  which 
seems  to  exist  in  the  English  law,  and  the  looseness  of  the  common 
law  on  this  subject,  it  seems  that  although  we  many  times  see 
the  statement  that  cohabitation  will  constitute  marriage,  or  will 
evidence  marriage,  even  though  it  did,  there  were  none  of  the 
usual  incidents  or  rights  consequent  upon  such  marriage,  so  that 
there  would  be  really  no  marriage  without  some  sort  of  a  formal 
ceremony.  And  the  statement  is  made  in  a  note  to  Kent's  Com- 
mentaries that  "if  it  was  held  by  the  House  of  Lords  that  by  the 
law  of  England,  even  before  the  marriage  act,  a  contract  by  words 
in  the  future  was  never  a  valid  contract  of  marriage;  that  the 
civil  contract  and  the  religious  ceremony  were  both  necessary  to 
a  perfect  marriage  by  the  common  law."  Citing  Catherwood  v. 
Calson,  13  M.  &  W.  261. 

In  another  note  in  Kent,  p.  87,  citing  the  case  of  Beamish  v.  Beamish, 
9  H.  L.  C.  274,  it  is  said:  "In  England  it  is  settled  that  to  consti- 
tute a  valid  marriage  by  the  common  law.  it  must  have  been 
celebrated  by  a  clergyman  in  holy  orders." 

In  the  case  of  Holz  v.  Dick.  42  0.  S.  23,  the  parties  were  married  in 
due  form  of  law  but  without  the  consent  of  the  parents,  and  it  was 
held  that  where  such  a  marriage  was  followed  by  cohabitation 
after  the  age  of  consent,  it  then  constitutes  a  valid  marriage.  A 
marriage  good  at  common  law  is  good  unless  the  statute  contains 
express  words  of  nullity,  12  0.  S.  555.  A  marriage  not  in  accord- 
ance with  form,  but  where  they  openly  and  mutually  consent  to 
a  contract  of  present  marriage,  and  thereafter  cohabit,  constitutes 
a  marriage.  Carmichael  v.  State,  12  0.  S.  553.  See  Johnson  v. 
Dudley,  4  Oh.  Dec.  243,  249. 

Sec.  2007.     Legitimacy  of  children. 

Tn  order  to  make  children  of  parents  who  have  not  been 
formally  married  legitimate  the  parents  must  live  together  as 
husband  and  wife — a  man  and  woman  may  live  together  and 
raise  a  family  of  children  and  such  children  be  illegitimate 
bastards — it  is  not  the  living  together  and  raising  of  children 
that  make  the  children  legitimate,  but  it  is  living  together 
as  husband  and  wife,  and  not  living  together  in  a  state  of 
fornication.     It  is  living  together  as  Inislmnd  and  unfe,  holding 


1800  INSTRUCTIONS  TO  JURY. 

themselves  out  to  the  world  as  husband  and  wife,  having  the 
reputation  in  the  community  of  being  husband  and  wife.  The 
law  presumes  that  all  children  are  legitimate,  presumes  that  a 
man  and  woman  would  not  live  together  in  a  state  of  fornication, 
but  this  presumption  will  not  make  children  legitimate.  To 
make  them  legitimate  they  must  be  born  to  persons  living 
together  as  husband  and  wife.  If  persons  live  together  as 
husband  and  wife,  holding  themselves  out  to  the  world  as  such, 
and  having  the  reputation  of  being  husband  and  wife,  then  the 
children  born  to  them  would  be  legitimate,  although  there  had 
been  no  marriage,  no  formal  ceremony  of  marriage.1 
i  E.  P.  Green,  J.,  in  Dudley  v.  Warren,  unreported,  Sup.  Ct. 

Sec.  2008.  Marriage  in  another  state  forbidden  by  laws  of 
such  state — Followed  by  cohabitation  in 
Ohio. 

If  you  find  that  such  marriage  did  take  place  in  Alabama,  it 
being  admitted  that  such  marriage  between  a  master  and  his 
slave — it  being  admitted  that  E.  was  at  that  time  the  slave  of 
M. — was  forbidden  by  the  laws  of  Alabama  and  is  null  and  void, 
yet  if  they,  M.  and  E.,  live  together  as  husband  and  wife  in  the 
State  of  Alabama,  and  children  were  born  to  them,  and  though 
these  children  would  be  illegitimate  and  bastards,  if  you  should 
further  find  that  they  afterwards  lived  in  Ohio  together  as 
husband  and  wife,  under  the  rules  that  I  have  given  you,  then 
the  children  so  born  in  Alabama  would  be  legitimate  by  the 
subsequent  marriage  of  their  parents.1 
i  E.   P.   Green,   J.,    in   Dudley  v.  Warren,   supra. 


CHAPTER   CXVIII. 
MASTER    AND    SERVANT— NEGLIGENCE    OF    MASTER. 


SEC. 
2009. 

2010. 


2011. 


2012. 

2013. 

2014. 

2015. 
2016. 

2017. 
2018. 
201!). 


General  duty  of  master  to 
servant. 

Master  must  exercise  ordi- 
nary care  in  selecting 
servants. 

Ihity  of  railroad  company 
to  use  reasonable  care  to 
furnish  adequate  number 
of  competent  employes 
to  manage  engine  and 
train. 

Whether  failure  to  furnish 
adequate  number  of  em- 
ployes is  proximate  cause 
of  injury. 

If  servant  knew  there  was  an 
inadequate  force  of  em- 
ployes and  continues  in 
service,  he  assumes  risks. 

Duties  of  master — Assump- 
tion of  risk — General 
scope  and  extent  of  doc- 
trine. 

Servant  assumes  risk  of  neg- 
ligence of  fellow  servant. 

If  master  uses  ordinary  care 
in  selecting  servant,  who 
subsequently  becomes  in- 
competent, knowledge  of 
master  essential. 

Servant  does  not  assume  risk 
of  negligence  of  incom- 
petent servant  already  in 
service. 

Servant  does  not  assume  risk 
of  negligence  of  one  occu- 
pying relation  of  prin- 
cipal. 
Insufficient  force — Risk  as- 
sumed when. 


SEC. 

2020.  Fellow  servants — Who  are — 

When  one  placed  in  con- 
trol of  another. 

2021.  Rules  for  determining  who  is 

co-employe  or  vice  prin- 
cipal — ■  Brakeman  and 
foreman. 

2022.  Respondeat     superior — Disre- 

gard of  orders  of  super- 
ior servant — Effect  of. 

2023.  Fellow    servant  —  Conductor 

and    brakeman. 

2024.  Relation     between     engineer 

and  train  dispatcher. 

2025.  Acts  done  by  servant  at  re- 

quest of  fellow  servant — 
Liability  of  master. 

2026.  Obvious  dangers — Acts   done 

by  order  of  superior  serv- 
ant. 

2027.  Warning   of    danger   by   fel- 

low servant. 

2028.  Knowledge     of     danger     un- 

known to  master — When 
danger  known  to  servant. 

2029.  Knowledge       of       dangerous 

methods  amounts  to  ac- 
quiescence and  assump- 
tion of  risks. 

2030.  Knowledge  of  work   and  as- 

sumption of  risks. 

2031.  Duty  of  railroad  conductor. 

2032.  Railroad  company  deemed  to 

have  knowledge  of  defect 
— Burden  of  proof  on 
company  to  rebut. 

2033.  Duty  of  railroad  company  as 

to  inspection — Defect  in 
brake-staff. 

1801 


1802 


INSTRUCTIONS  TO  JURY. 


SEC. 

2034.  Burden  of  proof  of  contribu- 

tory negligence  on  de- 
fendant unless  plaintiff's 
own  testimony  raises  in- 
ference. 

2035.  Contributory  negligence  con- 

sidered with  reference  to 
directions  of  master. 

2036.  Contributory     negligence    of 

servant  of  railway  when 
slight  as  compared  with 
negligence  of  master  — 
Present  statutory  rule. 

2037.  Servant  injured  while  work- 

ing on  derrick  car — Neg- 
ligence by  running  engine 
into  same — Without  dis- 
connecting machinery  on 
such  car. 

1.  Law  of  another  state  gov- 

erns— Negligence  of  fel- 
low servant. 

2.  Duty  of  master  to  provide 

safe  place  to  work. 

3.  Contributory  negligence. 

4.  Concurrent  negligence. 

5.  Proximate      cause      differ- 

entiated from  concurrent 
negligences. 

2038.  Death   of   engineer   from   de- 

railment of  train. 

1.  General  duty  of  plaintiff. 

2.  Defendant  not   an   insurer 

— Ordinary  care  required. 

3.  Rule     of      ordinary     care 

varies  under  circum- 
stances. 

4.  Negligence  must  cause  in- 

jury. 

5.  Excessive    speed    as    cause 

of  derailment  of  train. 
2039.  Failure  to  warn  and  in- 
struct and  to  sufficient!  y 
light  machinery — Injury 
to  servant  in  operating 
power    shears. 


SEC. 


2040. 


2041. 


2042. 


2043. 
2044. 


1.  Statement  of  claima 

2.  Burden  and  degree  of  evi- 

dence. 

3.  Failure    to    observe    ordi- 

nary care  by  either 
party  constitutes  negli- 
gence. 

4.  Proximate  cause. 

5.  Plaintiff's  own  evidence. 

raising  inference  of  neg- 
ligence. 

6.  Whether      defendant      re- 

quired to  warn  plaintiff, 
for  jury. 

7.  Pule  of  law  as  to  obvious 

danger. 

8.  Duty   to   light   machinery. 
Injury    caused    by    defective 

guy    supporting    derrick. 

1.  Statement    of    claim — De- 

fective guy. 

2.  Defect,  defective,  meaning. 

3.  Knowledge   of   defect — Re- 

liance upon  promise  to 
repair. 

4.  Appliance    of    simple   con- 

struction— Rule  to  be 
applied — Risk    assumed. 

5.  Reliance  on  promise  to  re- 

pair only  when  servant 
has  limited  knowledge; 
or  where  some  measure 
of  skill  required. 

6.  Instructions       given       by 

master — Effect  of  dis- 
obedience by  servant. 

Railroad  company  may 
make  rules  governing 
conduct  of  employe — 
Duty  of  employe  with 
reference  to. 

Liability  of  railroad  com- 
pany for  violation  of 
rules  by  employe. 

Measure  of  damages. 

Injury  to  child  of  employe. 


MASTER  AND  SERVANT — NEGLIGENCE  OP   MASTER.  1803 

SEC.  SEC. 

2045.  Joint  occupancy  of  sidetrack  2046.  Relation  of  servant  and 
by   two   companies.  agency    may   be   inferred 

from  facts  and  circum- 
stance. 

Sec.  2009.     General  duty  of  master  to  servant. 

The  relation  between  the  plaintiff  and  the  defendant  was  that 
of  master  and  servant,  and  the  law  imposes  certain  duties  upon 
each  of  the  parties  to  that  relation — both  upon  the  master  and 
also  upon  the  servant.  It  was  the  duty  of  the  railway  company 
— the  master — to  use  ordinary  and  reasonable  care  in  providing 
for  its  employes  a  safe  and  suitable  place  in  which  to  do  their 
work ;  and  ordinary  and  reasonable  care  is  such  care  as  ordinarily 
prudent  persons  or  corporations  are  accustomed  to  exercise 
under  the  same  or  similar  circumstances.  The  company  is  not 
required  to  use  extraordinary  care,  nor  is  it  required  to  do 
what  is  unreasonable  or  impracticable,  taking  into  consideration 
all  the  circumstances.  The  company  does  not  guarantee  the 
absolute  safety  of  its  employes;  it  is  not  an  insurer  of  its 
emploj^es.  It  is  required  only  to  use  what  would  be  reasonable 
care  under  all  the  circumstances  of  the  case. 

You  will  first  determine  from  the  evidence  how  the  injury 
occurred. 

Sec.  2010.     Master  must  exercise  ordinary  care  in  selecting 
servants. 

The  defendant  is  not  bound  to  warrant  the  competency  of  its 
servant  to  discharge  his  duties,  but  only  bound  to  exercise 
ordinary  care  in  employing  and  retaining  him.  The  duty  of 
the  company  was  to  exercise  ordinary  care  in  the  selection  of  its 
employes;  or  take  that  care  which  ordinarily  prudent  men  are 
accustomed  to  exercise  in  their  own  affairs  under  similar  circum- 
stances.   They  are  held  to  this  degree  of  care,  and  this  only. 

If  the  jury  find  tins  defendanl  company  did  exercise  ordinary 
care  and  caution  at  the  time  of  employing  I'.,  the  engineer,  to 
ascertain  whether  he  was  competent  or  not,  and  did  find  him 


1804  INSTRUCTIONS  TO  JURY. 

fully  competent  to  discharge  his  duties  as  an  engineer,  then 
said  company  had  the  right  to  presume  that  he  would  continue 
competent  until  the  contrary  was  known  to  them.1 

i  As  to  degree  of  care  required  in  selecting  servants,  see  Mobile,  etc.,  R.  R. 
Co.  v.  Thomas,  42  Ala.  459 ;  Cooley  on  Torts,  659  ( 558 )  ;  Wood 
on  Railroads,  sec.  389. 

Sec.  2011.  Duty  of  railroad  company  to  use  reasonable  care 
to  furnish  adequate  number  of  competent 
employes  to  manage  engine  and  trains  of 
cars. 

It  was  the  duty  of  the  railroad  company  to  use  ordinary  and 
reasonable  care  to  furnish  an  adequate  number  of  competent  em- 
ployes to  properly  manage  the  engine  and  train  of  cars  upon 
which  the  plaintiff  was  working ;  that  is,  it  was  the  duty  of  the 
company  to  use  such  care  in  that  respect  as  ordinarily  pru- 
dent persons  or  corporations  engaged  in  like  business  usually 
exercise  under  the  same  circumstances.  And  the  question  now 
for  you  to  determine  from  the  evidence  is:  did  the  company 
exercise  such  care?  Were  the  engine  and  train  of  cars  in  ques- 
tion furnished  by  the  company  with  a  sufficient  number  of  em- 
ployes who  were  charged  with  the  duty  of  coupling  cars  and 
otherwise  properly  handling  the  train,  and  who  were  compe- 
tent and  were  expected  to  perform  these  duties  ?  If  this  engine 
and  train  of  cars  were  so  furnished  with  an  adequate  number  of 
such  employes,  then  the  company  is  not  chargeable  with  fault 
for  omitting  to  send  out  upon  the  engine  upon  the  morning 

of  the  injury,  in  starting  from ,  a  conductor  and  brakeman. 

The  inquiry  is:  whether,  at  the  time  of  the  injury,  the  engine 
and  train  were  sufficiently  and  properly  manned  for  the  pur- 
pose of  performing  all  the  duties  that  usually  appertain  to  the 
operating  and  managing  an  engine  and  train  under  such  cir- 
cumstances. If  this  engine  and  train  of  cars  was  so  adequately 
and  sufficiently  manned,  then,  of  course,  the  company  was  not 
negligent  in  that  respect. 


MASTER  AND  SERVANT NEGLIGENCE  OP  MASTER.  1805 

Sec.  2012.  Whether  failure  to  furnish  adequate  number  of 
employes  is  proximate  cause  of  injury. 

(a)  Same   continued  — Must   be  proximate   cause  of  injury. 

But  if  you  find  from  the  evidence  that  the  train  was  not  fur- 
nished with  an  adequate  force  of  men,  you  will  then  inquire 
whether  the  failure  to  furnish  this  train  with  an  adequate  force 
of  men  caused  the  injury.  To  make  the  defendant  liable  for 
the  injury,  the  inadequate  force  of  men  must  have  caused  or 
occasioned  the  injury,  and  it  must  be  the  proximate  cause  of 
the  injury.  And  this  is  a  question  of  fact  for  you  to  determine 
from  all  the  evidence  in  the  case.  Was  the  failure  to  equip 
this  train  with  an  adequate  force  of  men,  if  such  failure  existed, 
the  immediate  and  proximate  cause  of  plaintiff's  injury?  If 
the  plaintiff  was  without  fault  in  attempting  to  make  the  coup- 
ling of  these  two  cars,  and  he  was  injured  by  reason  of  the  fail- 
ure of  the  company  to  furnish  an  adequate  force  of  men  to 
properly  protect  him  against  injury — such  as  by  giving  signals 
to  the  engineer,  or  otherwise — then  the  failure  to  furnish  an 
adequate  force  of  men  was  the  proximate  cause  of  the  injury. 
But  if  the  injury  did  not  result  from  the  absence  of  a  sufficient 
force  of  men,  naturally  and  in  the  usual  course  of  events,  or  if 
the  company  could  not  reasonably  have  anticipated  that  in  con- 
sequence of  the  absence  of  sufficient  force  the  plaintiff  would 
receive  an  injury,  then  the  absence  of  such  force  was  not  the 
proximate  cause  of  the  injury.  Of  course,  as  you  will  readily 
see,  it  would  make  no  difference  what  fault  the  company  com- 
mitted with  reference  to  this  force  of  men,  unless  such  fault 
directly  contributed  to  produce  the  injury,  and,  as  I  have  said, 
it  is  a  question  of  fact  which  you  must  determine  from  all  the 
evidence  in  the  case. 

Sec.  2013.     If  servant  knew  there  was  an  inadequate  force  of 
employes,   and   continues  in  service,   he  as- 
sumes risks. 
(&)  Same  continued — Knowledge  of  plamtiff. 
But  it  is  claimed  by  the  defendant  that,  even  if  the  force  of 
men  who  were  operating  this  train  of  cars  was  inadequate,  the 


1806  INSTRUCTIONS  TO  JURY. 

plaintiff,  under  the  circumstances  of  this  case,  took  upon  him- 
self the  risk  of  injury  from  that  cause,  and  can  not  now  hold 
the  company  responsible  for  an  injury  received  from  that  cause- 
That  is  the  claim  on  the  part  of  the  defendant. 

The  rule  upon  that  subject  is  this :  If  the  servant  of  a  rail- 
road company  has  a  full  knowledge  of  any  omission  of  duty 
or  neglect  on  the  part  of  the  company,  and  with  such  knowledge 
— notwithstanding  such  knowledge — continues  in  the  service  of 
the  company  without  making  any  objection,  or  without  using 
any  exertions  to  have  the  omission  of  duty  or  neglect  remedied, 
he  thereby  takes  upon  himself  the  risk  of  injury  arising  from 
such  neglect  and  waives  the  right  to  recover  of  the  company 
for  the  injury. 

The  jury  is  instructed  if  they  find  from  the  evidence  that 
the  plaintiff,  upon  the  day  in  question,  proceeded  on  his  train 
as  fireman,  knowing  that  there  was  no  conductor  or  brakeman 
in  charge  of  the  train,  and  that  he  would  be  required  to  perforin 
the  duties  ordinarily  performed  by  such  conductor  and  brake- 
men,  then  he  assumed  all  the  extra  risks  incident  to  such  em- 
ployment, and  thereby  waived  any  obligation  on  the  part  of  the 
company  to  furnish  a  conductor  and  brakemen  for  such  train. 
If  the  plaintiff  knew  when  he  started  on  this  train  on  the 
morning  in  question  that  there  was  no  conductor  and  brakemen 
in  charge  of  the  same,  and  that  he  would  be  required  to  do  the 
duties  of  a  brakeman,  he  had  a  right  to  abandon  the  service 
and  refuse  to  proceed  without  such  conductor  and  brakemen, 
and  his  refusal  to  do  so,  and  his  election  to  proceed  without 
such  conductor  or  brakemen  was  a  waiver  on  his  part  of  any 
obligation  of  the  company  in  that  regard,  and  the  plaintiff  in 
such  case  would  not  be  entitled  to  recover  on  that  account.1 
i  Pugsley,  J.,  Penn.   Co.  v.  Hinckley.     Affirmed  by  circuit   court. 

Sec.  2014.     Duties  of  master— Assumption  of  risks— General 
scope  and  extent  of  doctrine. 
The  defendant  owed  certain  duties  to  the  plaintiff,  his  em- 
ploye.    If  he  failed  in  the  performance  of  those  duties,  then, 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1807 

as  a  matter  of  law,  he  would  be  negligent,  and  the  question  of 
the  defendant's  negligence  depends  whether  it  performed  the 
duties  imposed  upon  it  by  the  law.  When  the  plaintiff  entered 
into  the  employ  of  the  defendant  he  assumed  all  the  ordinary 
risks  and  dangers  of  his  employment,  which  would  include  the 
risks  and  dangers  which  may  be  occasioned  by  the  carelessness 
or  neglect  of  a  fellow  employe.1  But  the  plaintiff  did  not,  when 
he  entered  the  services  of  the  defendant,  assume  the  risks  and 
dangers  occasioned  by  the  carelessness  or  negligence  of  the  de- 
fendant. Or,  to  restate  the  proposition,  he  did  not  assume  the 
dangers  or  risks  incident  to  the  failure  upon  the  part  of  the  de- 
fendant to  perform  duties  it  owed  to  its  employe.  And  if  the 
plaintiff's  injury  in  this  case  was  the  result  of  the  ordinary  risks 
and  dangers  of  his  occupation,  then  he  could  recover  no  damages 
for  such  injury,  for  the  simple  reason,  gentlemen,  that  no  person 
would  be  in  fault,  If  his  injury  was  caused  by  the  ordinary 
risks  and  hazards  of  his  occupation,  it  would  be  a  mere  accident 
—the  defendant  not  to  blame  and  the  plaintiff  not  to  blame. 
But  if  the  plaintiff's  injury  was  occasioned  by  the  negligence 
or  carelessness  of  the  defendant,  then  he  may  recover,  unless 
his  own  carelessness  or  negligence  in  some  way  contributed  to 
his  injury. 

Now,  the  defendant' owed  the  duty  to  the  plaintiff  to  exer- 
cise ordinary  care  by  furnishing  safe  tools  and  implements 
for  his  use.  and  having  a  proper  place  in  which  to  prose- 
cute his  work,  and  a  reasonably  safe  means  of  access  to  and 
from  his  work.  If  the  defendant  failed  in  any  of  these  par- 
ticulars, and  by  reason  of  such  failure  plaintiff  was  injured, 
then  plaintiff  would  be  entitled  to  recover,  unless  you  should 
find  that  plaintiff's  negligence  or  carelessness  contributed  in 
some  way  to  his  own  injury.2 

i  1    C.   C.   350,   53  W.   L.   B.   436,   33   0.   S.   468,   2  C.   C.   3. 
2  From    Bellaire    Nail    Works    v.    Morrison.     .Supreme    Court,    unreported. 
No.  2902.     Affirmed. 


1808  INSTRUCTIONS  TO  JURY. 

Sec.  2015.  Servant  assumes  risk  of  negligence  of  fellow 
servant. 

It  is  a  general  rule  of  law  that  a  servant,  by  entering  into  his 
master's  service,  assumes  all  the  risks  of  that  service  which  the 
master  can  not  control,  including  the  risk  arising  from  the  neg- 
ligence of  his  fellow-servants.  He  assumes  the  risks  of  the  neg- 
ligence of  the  men  employed  with  him  in  a  common  service — 
co-employes — engaged  in  a  common  employment,  where  the  one 
is  not  in  superior  authority  to  the  other.1 

1  Danger  not  inherent  in  the  work,  and  not  in  the  manner  of  doing  it, 
is  not  assumed,  47  0.  S.  207.  All  risks  not  inherent  in  the  work 
must  be  notified  to  him  by  the  master,  23  W.  L.  B.  436,  27  W.  L. 
B.  267.  Only  ordinary  risks  are  assumed,  1  C.  C.  359,  23  W.  L. 
B.  436. 

Sec.  2016.  If  master  uses  ordinary  care  in  selecting  servant, 
who  subsequently  becomes  incompetent, 
knowledge  of  master  essential. 

It  is  the  law  that  the  company,  acting  in  good  faith  and  ex- 
ercising ordinary  care  and  diligence  in  the  employment  of  B. ; 
exercising  that  degree  of  care  that  ordinarily  prudent  men  are 
accustomed  to  employ  under  like  circumstances,  if  these  men 
employed  this  man  to  do  this  particular  duty  on  this  day  in  the 
belief  that  he  was  competent  to  do  it,  and  in  doing  that  exer- 
cised ordinary  care  in  selecting  him  to  do  that,  and  it  turned 
out  upon  this  particular  day,  and  the  transactions  that  occurred 
there  indicated  incompetency,  if  they  had  no  knowledge  of  his 
incompetency,  the  company  would  not  be  at  fault,  even  though 
he  proved  to  be  incompetent.  Of  course  after  he  had  been  in 
the  employ  of  the  company,  in  order  to  determine  if  it  was  ap- 
parent to  the  company  that  he  was  incompetent,  by  his  methods 
of  transacting  the  business  imposed  upon  him ;  if  this  became 
apparent  in  the  discharge  of  his  duties,  that  he  was  incompetent, 
then  it  would  follow  that  they  had  knowledge  and  would  have  to 
govern  themselves  accordingly. 


MASTER  AND  SERVANT — NEGLIGENCE  OF  MASTER.  1809 

If  the  jury  find  that  engineer  B.  was  a  competent  employe 
at  the  time  he  entered  the  service  of  this  defendant  company, 
but  that  he  afterwards  became  incompetent,  still,  unless  the  rail- 
road company  had  knowledge  of  such  incompetency,  it  is  not 
liable  for  injuries  inflicted  by  said  B.'s  want  of  care  to  his 
fellow-servants.1 

i  From  The  Cleveland,  Lorain  &  Wheeling  R.  R.  Co.  v.  Pulley.     Supreme 
court,  unreported.     Affirmed.     Stone,  J. 

Sec.  2017.  Servant  does  not  assume  risk  of  negligence  of  a 
servant  incompetent  when  entering  employ- 
ment. 

One  of  the  exceptions  to  the  general  rule  that  the  servant, 
when  entering  his  master's  employment,  assumes  the  risks  aris- 
ing from  the  negligence  of  his  fellow-servants  is  where  the  em- 
ployer has  in  his  service  persons  who  are  incompetent  to  dis- 
charge the  duties  imposed  upon  them. 

Sec.  2018.  Servant  does  not  assume  risk  of  negligence  of  one 
occupying  relation  of  principal. 

The  plaintiff,  in  accepting  the  employment  or  service  as  a 
brakeman  in  the  defendant's  railroad  company,  assumes  the 
risk  of  injury  from  dangers  ordinarily  incident  to  the  business, 
and  the  risk  of  danger  from  the  negligence  of  his  co-employes, 
but  he  does  not  assume  the  risk  of  danger  to  him  from  tbe  neg- 
ligence of  those  who  occupy  the  relation  of  principal  to  him  in 
his  service  and  employment  by  the  defendant.1 

i  Waight,  J.,  in  C.  A.  &  C.  Ry.  Co.  v.  Sharp.     Supreme  court,  unreported. 
Affirmed. 

Sec.  2019.    Insufficient  force — Risk  from  assumed,  when. 

"It  is  the  duty  of  a  railway  company  to  furnish  the  neces- 
sary and  proper  number  of  hands  for  the  safe  management  of 
its  trains,  and  for  a  delinquency  in  this  particular  the  conduc- 
tor of  a  train  has  a  right  to  decline  his  charge,  or  refuse  to  run 
the  train.     But  when  lie  takes  the  charge  and  runs  the  train 


1810  INSTRUCTIONS  TO  JURY. 

for  a  length  of  time,  without  a  sufficient  number  of  hands,  he 
voluntarily  assumes  the  risk  and  waives  the  obligation  of  the 
company  in  this  respect  as  to  himself,  and  if  injured  by  means 
of  such  delinquency  on  the  part  of  the  company,  he  is  without 
a  remedy  against  the  company  for  damages."1 

i  Railway  Co.  v.  Barber,  5  O.  S.  542. 

In  Ry  v.  Barber,  supra,  the  court  say  on  page  560:  "The  company  did 
not  insure  him  (employe)  against  accident,  or  those  unforseen 
perils  which  due  and  proper  care  and  diligence  could  not  provide 
against.  Injuries  from  accidents,  which  the  utmost  stretch  of 
human  skill  and  foresight  can  not  provide  against,  are  incident 
to  all  situations  and  conditions  in  life.  And  because  one  person 
is  in  the  employ  of  another  in  a  hazardous  business  it  does  not 
follow  that  the  employer  must  stand  responsible  for  damages  re- 
sulting from  injuries  received  through  accidents  which  a  proper 
degree  of  skill  and  diligence  can  not  guard  against." 

And  in  Ry  v.  Knittal,  33  0.  S.  468,  the  court  say :  "The  employe  of  a 
railroad  company  takes  the  ordinary  hazards  of  the  service,  also 
such  risks  as  arise  from  his  own  negligence  or  that  of  his  fellow- 
servants." 

Sec.  2020.     Fellow-servants — Who  are — When  one  placed  in 
control  of  another. 

All  who  serve  the  same  master,  work  under  the  same  control, 
derive  authority  and  compensation  from  the  same  common 
source,  and  are  engaged  in  the  same  general  business,  though 
it  may  be  in  different  grades  and  departments  of  it,  are  fellow- 
servants.  Where  different  persons  are  employed  by  the  same 
principal  in  a  common  enterprise,  and  no  control  is  given  to 
one  over  the  other,  no  action  can  be  sustained  by  them  against 
their  employer  on  account  of  any  injuries  sustained  by  one 
agent  through  the  negligence  of  another.  But  when  one  ser- 
vant is  placed  by  his  employer  in  a  position  of  subordination, 
and  is  subject  to  the  orders  and  control  of  another,  and  such 
inferior  servant,  without  fault,  and  while  in  the  discharge  of 
his  duties,  is  injured  by  the  negligence  of  the  superior  servant, 
the  master  is  liable  for  the  injury. 

i  Green,  J.,  in  The  C.  A.  &  C.  Ry.  Co.   r.  Umstead.     Supreme  court,  No. 
2481;    Cooley  on  Torts,  662    (560);    Jagsrard   on  Torts,  240. 


MASTER  AND  SERVANT — NEGLIGENCE  OF  MASTER.  1811 

Sec.  2021.    Rules  for  determining-  who  is  co-employe  or  vice- 
principal — Brakeman  and  foreman. 

But  if  you  find  that  either  of  these  persons  were  negligent 
in  the  discharge  of  their  duty,  then  you  will  consider  and  de- 
termine whether  the  one  you  find  was  so  negligent'  was  a  co- 
employe  of  the  plaintiff,  or  occupied  the  position  of  vice-prin- 
cipal, so  far  as  the  defendant  was  concerned,  in  the  plaintiff's 
employment  by  him.  And  the  rule  by  which  you  are  to  deter- 
mine whether  he  was  a  co-employe  or  vice-principal  depends 
upon  whether  or  not,  under  their  employment  by  the  defendant, 
the  foreman  actually  had  power  or  authority  to  direct  and  con- 
trol the  services  of  the  plaintiff  in  his  employment  by  the  de- 
fendant. If  he  has  this  authority  from  their  employer,  then 
the  former  stands  in  the  place  of  said  employer  as  to  the  plain- 
tiff, and  if  he  is  negligent,  and  his  negligence  results  in  injury 
to  the  plaintiff,  the  employer,  the  defendant  in  this  case,  would 
be  liable.  If  he  had  no  such  authority,  actual  authority  or  power 
to  direct  and  control  these  services  of  the  plaintiff  upon  behalf 
of  the  defendant,  but  they  stood  equal  in  that  regard,  and  they 
would  be  co-employes,  and  the  defendant,  the  company,  would 
not  be  liable  for  the  negligence  of  either  resulting  in  injury 
to  the  other.1  Now,  gentlemen  of  the  jury,  under  these  in- 
structions, it  is  for  you  to  determine,  from  the  testimony  in  this 
case,  whether  or  not  this  man  J.,  the  foreman  of  the  brakemen. 
as  he  was  designated  in  the  proof,  occupied  this  position  of 
authority  by  reason  of  his  employment  by  the  defendant.  If 
he  did  not,  then  the  defendant  would  not  be  liable,  even  though 
he  was  negligent ;  if  he  did  occupy  this  position  of  authority 
over  the  services  of  the  plaintiff,  then,  if  he  was  negligent  in 
the  performance  of  bis  duties,  tbe  defendant  would  be  liable, 
unless   the   plaintiff   was  guilty   of  contributory   negligence.2 

1  To   constitute    the   relation    of    superior    and    inferior    servant,   tlio    latter 

iimsf    lie   under   <he   orders   of   1  he    former.      .Jenkins    r.    I!.    It.  Co.,   17 
O.   S.    197. 

2  Wai^tit,  ,].,  in  C.  A.  &.  C.  Ry.  Co.  v.  Sharp.     Supreme  court,  unreported. 

Judgment  affirmed. 


1812  INSTRUCTIONS  TO  JURY. 

It  has  been  uniformly  held  in  Ohio,  that  where  one  servant  is  placed 
in  a  position  of  subordination  to  and  subject  to  the  orders  and 
control  of  another  servant  of  a  common  master,  and  the  sub- 
ordinate servant,  without  fault  of  his  own  and  while  in  the  per- 
formance of  his  duty,  is  injured  through  the  negligence  of  the 
superior  servant  while  acting  in  the  common  service,  an  action  lies 
in  favor  of  the  inferior  servant  so  injured  against  the  master. 
L.  M.  R.  R.  Co.  v.  Stevens,  20  O.  415;  C.  C.  &  C.  R.  R.  Co.  v. 
DeKeary,  3  0.  S.  208,  209  and  210,  17  O.  S.  211,  36  O.  S.  221, 
224,  226,  38  O.  S.  389. 

"Whether  an  engineer,  or  employe  of  a  railroad  company,  has  authority 
to  direct  or  control  other  employes  of  the  same  company,  is  a  ques- 
tion of  fact  to  be  determined  in  each  case.  This  may  be  done, 
however,  either  by  proof  of  express  authority,  or  by  showing  the 
exercise  of  such  authority  to  be  customary,  or  according  to  the 
usual  course  of  conducting  the  business  of  the  particular  company 
interested,  or  of  railroad  companies  generally."  Railroad  Co.  v. 
Margrat,   31   W.   L.   B.  247;    Railway  V.  Lewis,  33   O.   S.   196. 

Sec.  2022.     Respondeat  superior — Disregard  of  orders  of  su- 
perior servant — Effect  of. 

Further,  if  you  should  find  that,  at  the  time  of  the  accident, 
C.  willfully  disobeyed  or  disregarded  the  order  or  admonition  of 
a  servant  superior  to  himself,  that  is,  a  servant  under  whose 
control  he  was,  and  to  whose  orders  and  directions  he  was  made 
subject  in  the  discharge  of  his  duty,  and  such  order  pertained  to 
his  safety  and  such  disobedience  contributed  at  the  time  to  his 
death,  the  plaintiff  can  not  recover.1 
i  R.  de  Steiguer,  J.,  in  Cook  v.  C.  H.  V.  &  T.  Ry.,  51  O.  S.  636. 

Sec.  2023.    Fellow  servants — Conductor  and  brakeman. 

If  C.  was  actually  subject  to  the  control  and  direction  of  B., 
as  conductor,  in  the  discharge  of  his  duties  as  brakeman,  then 
he  was  not  the  fellow-servant  of  the  conductor,  but  the  con- 
ductor was  the  superior  servant  of  C,  and  the  acts  of  the 
conductor  and  his  orders  and  directions,  in  the  discharge  of 
his  duties  as  such,  would  be  acts  of  the  defendant.2 
i  R.  de  Steiguer,  J.,  in  Cook  v.  C.  H.  V.  &  T.  Ry.,  51  O.  S.  636. 


MASTER  AND  SERVANT NEGLIGENCE  OF  MASTER. 


1813 


Sec.  2024.     Relation  between  engineer  and  train  dispatcher. 

The  defendant  from  the  statement  of  its  claim  says  that  if 
there  was  any  negligence,  it  was  the  negligence  of  a  fellow- 
servant,  and  for  this  it  would  not  be  liable,  and  this  brings 
you  to  the  consideration  of  the  question  as  to  whether  or  not 
the  assistant  train  dispatcher  or  the  operator  at  P.  were  the 
fellow-servants  of  the  engineer  R. 

Upon  this  question  you  are  instructed  that  if  you  find  that 

the  defendant  had  at  that  time  committed  and  entrusted  the 

entire  charge  of  its  business  with  regard  to  the  making  and 

transmitting  the  order  for  the  moving  train — to  the   assistant 

train  dispatcher,  or  to  him  and  the  telegraph  operator  jointly, 

and  exercised  no  discretion  or  oversight  over  them,  or  either 

of  them,  in  regard  thereto,  then  the  act  or  acts  of  the  one  or 

both,  as  you  may  find  this  business  to  have  been  thus  entrusted 

to  the  one  or  both,  would  be  the  act  or  acts  of  the  defendant, 

and  if  the  one  or  the  other,  or  both,  to  whom  you  may  have 

found  this  particular  business  to  have  been  entrusted  by  the 

defendant,  did  not  act  with  ordinary  care  in  the  making  and 

transmitting  of  the  order  to  the   conductor  and   engineer  of 

train  — ,  and  the  injury  to  R,  resulted  directly  therefrom,  and 

R.   himself  was   in   exercise   of   ordinary    care,   then   for  such 

negligence  the  defendant  would  be  liable.    But  if  you  find  that 

the  defendant  did  not  so  entrust  its  business,  and  this  particular 

business,   to   the    assistant   train   dispatcher,    or   the    telegraph 

operator,  or  to  either  or  both  of  them,  then,  as  to  the  one  or 

both  as  you  may  find  to   whom   the  defendant  had  not  thus 

entrusted  this  particular  business,  the  relation  of  fellow-servant 

would   exist   between  such   one   or  both   and  the  engineer  R., 

unless  you  find  that  they,  or  either  of  them,  had  authority  from 

the  defendant  to  control  his  movements  in  regard  to  this  train, 

and  had  the  right  to  order  him  in  regard  to  its  movements,  and 

did  so  order  him,  and  the  train  was  moved,  and  for  the  want 

of  care  of  such  a  fellow-servant  to  whom  this  business  was  not 

so  entrusted,  and  who  had  not  the  authority  to  order,  and  did 


1814  INSTRUCTIONS  TO  JURY. 

not  so  order,  the  conductor  and  engineer,  the  defendant  would 

not  be  liable.1 

i  Johnston,  J.,  in  Rogers  v.  P.  L.  E.  R.  R.  Co. 

Sec.  2025.    Acts  done  by  servant  at  request  of  a  fellow-servant 
— Liability  of  master. 

The  court  instructs  the  jury  if  they  find  from  the  evidence 
that  the  said  M.  was  working  at  one  place  in  said  mine,  and  was 
requested  by  a  fellow-servant  to  go  to  another  place  in  said 
mine  to  assist  said  fellow-servant  in  putting  up  said  post,  and 
while  so  assisting  said  fellow-servant,  received  the  injury  of 
which  he  complains,  then  the  plaintiff  can  not  recover,  for  a 
servant  can  not  recover  for  an  injury  incurred  in  assisting  a 
fellow-servant,  either  voluntarily  or  on  the  request  of  such 
servant.1 

i  From  Morris  Coal  Co.   v.  Mitchell,  supreme  court.     Affirmed.     Huffman, 
J.,  given  by  request.     Osborn  v.  Knox  R.  R.,  28  Am.  Rep.  16. 

Sec.  2026.     Obvious  danger — Acts  done  by  order  of  superior 
servant. 

If  the  jury  should  find  from  the  evidence  that  the  said  J.  M. 
was  ordered  by  his  superior  servant  to  do  an  act  that  is 
obviously  dangerous,  and  which,  when  done,  was  the  cause 
resulting  in  the  injuries  of  which  he  complains,  this  would  not 
render  the  defendant  liable,  for  the  liability  of  the  defendant 
is  conditional  upon  the  exercise  of  reasonable  and  proper  care. 
In  order  for  the  plaintiff  to  recover  for  the  negligence  of  the 
defendant  by  its  servants,  M.  must  have  been  free  from  negli- 
gence contributing  to  the  injury  of  which  he  complains. 

If  the  jury  find  from  the  evidence  that,  at  the  time  said 
M.  attempted  to  assist  to  pull  up  the  post  that  had  been  knocked 
down,  it  was  obviously  rash  and  dangerous  for  a  man  exercising 
ordinary  care  and  prudence  to  do  so,  and  the  danger  was  plain 
and  apparent  to  plaintiff;  plaintiff  was  not  obliged  to  obey  an 
order  to  do  a  rash  and  dangerous  thing,  and  if  he  did  so, 
under   those   circumstances,    although   ordered   so   to   do   by   a 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1815 

superior  servant,  and  in  so  doing  contributed  to  the  injury  of 
which  he  complains,  the  plaintiff  can  not  recover.1 

i  From  Morris  Coal  Co.   v.  Mitchell,  supreme  court.     Affirmed.     Huffman, 
J.,  given  by  request. 

Sec.  2027.     Warning  of  danger  by  fellow-servant. 

If  the  jury  find  from  the  evidence  that  the  plaintiff  was 
warned  by  his  fellow-workman  not  to  attempt  to  perform  the 
service  by  which  he  was  injured,  and  that  plaintiff,  by  the 
exercise  of  ordinary  care  and  prudence  after  receiving  such 
warning,  had  time  to  escape  from  such  danger  and  avoid  receiv- 
ing the  injuries  of  which  he  complains,  and  plaintiff  disregarded 
such  warning  and  was  injured,  he  can  not  recover,  for  I  charge 
you  if  you  find  such  to  be  the  fact,  that  plaintiff  would  be  guilty 
of  contributory  negligence  by  his  own  fault  to  the  injuries  for 
which  he  seeks  to  recover  damages  from  the  defendant.1 
i  From   Morris   Coal   Co.    v.   Mitchell,   supreme   court.     Affirmed. 

Sec.  2028.     Knowledge  of  danger  unknown  to  master — When 
danger  known  to  servant. 

I  say  to  you  further  that  no  recovery  can  be  had  against  the 
master  where  the  cause  of  the  injury,  of  whatever  nature,  was 
unknown  to  the  master,  and  could  not  have  been  known  in  the 
exercise  of  ordinary  care.  And,  furthermore,  no  recovery  can 
be  had  where  the  source  of  danger  is  known  to  the  servant,  and 
he,  without  communicating  his  knowledge  to  the  master,  con- 
tinues in  his  service.  In  such  case  he  is  presumed  voluntarily 
to  assume  the  risk,  and  he  can  not  recover  unless  it  is  made 
to  appear  that  he  informed  the  master  of  the  facts,  and  con- 
tinued in  his  service  on  the  faith  of  a  promise  that  he  would 
remove  the  danger  by  remedying  the  defects.1 

i  Nye,  J.,  in  C.  L.  &.  W.  R.  R.  v.  Nehl,  supreme  court,  4187.     Judgments 
affirmed. 


1816  INSTRUCTIONS  TO  JURY. 

Sec.  2029.     Knowledge  of  dangerous  methods  amounts  to  ac- 
quiescence and  assumption  of  risks. 

"If  it  be  conceded  that  the  switching  of  cars  from  the  main 
track  to  a  side  track  while  the  train  is  in  motion  is  a  dangerous 
mode  of  doing  business  and  ought  to  be  regarded  as  evidence 
of  negligence,  still  all  employes  who  entered  the  service  of  the 
company  with  full  knowledge  that  such  was  the  practice,  or 
acquired  such  knowledge  afterwards,  and  remained  in  the 
service  without  the  least  objection  thereto,  and  fully  acquiesced 
therein,  must  be  regarded  as  having  consented  to  the  practice 
or  as  having  waived  any  objection  thereto,  and  therefore  as 
having  taken  the  risk  upon  themselves. ' ' * 
i  Railroad  Company  v.  Knitted,  33  O.  S.  468. 

Sec.  2030.    Knowledge  of  work  and  assumption  of  risks. 

If  the  jury  find  from  the  evidence  that  the  said  J.  M.  entered 
the  employment  of  the  defendant  to  perform  the  work  of  a 
miner,  and  he  had  "knowledge  of  the  kind  of  work  he  was  to 
perform,  then  he  assumed  the  ordinary  risks  and  dangers  of 
the  service,  and  he  accepted  the  service  subject  to  such  risks 
thereto."1 

i  From  Morris  Coal  Co.  r.  Mitchell,  supreme  court.  Affirmed.  Huff- 
man, J.,  given  by  request. 

Judgments  of  common  pleas  affirmed  and  charge  approved,  27  W.  L.  B. 
347.  Knowledge  of  danger  is  not  negligence  per  se.  4  Am.  & 
Eng.  Enc.  of  Law,  p.  35,  n.  2.  City  of  Circleville  v.  Thorne,  1  O. 
C.  C.  Rep.  359. 

Sec.  2031.     Duty  of  railroad  conductor. 

It  is  the  duty  of  the  conductor  to  use  ordinary  care  in  the 
discharge  of  the  duties  of  his  employment.  If  he  has  charge 
and  control  of  this  train  of  the  defendant,  and  has  power  to 
direct  and  control  the  services  of  the  plaintiff  on  behalf  of  the 
defendant,  then  his  duty  would  be  to  exercise  ordinary  care  in 
the  discharge  of  these  duties;  and  ordinary  care  means  the 
care  that  a  person  of  ordinary  prudence  would  use  under  the 


MASTER  AND  SERVANT — NEGLIGENCE  OF  MASTER.  1817 

same  or  similar  circumstances.  It  is  for  you  to  say,  from  the 
testimony  in  the  case,  whether  or  not  the  conductor  exercised 
this  ordinary  care  in  the  discharge  of  the  duties  of  his  employ- 
ment. If  he  did,  that  is  the  extent  that  the  law  requires  of 
him,  and  the  defendant  would  not  be  liable.  If  he  did  not,  and 
his  failure  to  exercise  this  ordinary  care  resulted  in  injury  to 
the  plaintiff,  and  he  occupied  such  a  position  as  the  court  will 
hereafter  define  in  the  employ  of  the  defendant,  as  would  make 
the  defendant  liable  to  the  plaintiff  for  his  negligence,  then 
they  would  be  liable.  This  is  for  you  to  determine  from  the 
testimony.  If  you  find  that  he  exercised  this  ordinary  care, 
then  your  verdict  should  be  for  the  defendant,  so  far  as  this 
charge  of  negligence  is  concerned  in  the  defendant.  If  he 
failed  to  exercise  this  ordinary  care,  and  it  produced  the  injury 
to  the  plaintiff,  then  your  verdict  should  be  for  the  plaintiff, 
unless  you  find  for  the  defendant  on  other  grounds.1 

1  Waight,  J.,  in  C.  A.  &  C.  Ry.  Co.  v.  Sharp,  supreme  court,  unreported. 
Judgment  affirmed. 

Sec.  2032.  Railroad  company  deemed  to  have  knowledge  of 
defect — Burden  of  proof  on  company  to 
rebut. 

Under  a  statute  in  force  in  this  state  at  the  time  of  this 
accident,  and  applicable  thereto,  it  is  provided : 

"If  the  employes  of  any  railroad  corporation  shall  receive 
any  injury  by  reason  of  any  defect  in  any  car  or  locomotive, 
or  the  machinery  or  attachment  thereto  belonging,  owned  and 
operated,  or  being  run  and  operated  by  such  corporation,  such 
corporation  shall  be  deemed  to  have  had  knowledge  of  such 
defect  before  and  at  the  time  such  injury  is  so  sustained,  and 
when  the  fact  of  such  defect  shall  be  made  to  appear  in  the 
trial  of  any  action  in  the  courts  of  this  state,  brought  by  such 
employe,  or  his  legal  representative,  against  any  railroad  com- 
pany for  damages  on  account  of  such  injuries  so  received,  the 
same  shall  be  prima  facie  evidence  of  negligence  on  the  part  of 
such  corporation." 


1818  INSTRUCTIONS  TO  JURY. 

So  that  if  it  shall  have  appeared  to  you  that  Mr.  J.'s  death 
occurred  as  a  proximate  result  of  a  defect  which  existed  in  this 
brake-rod,  which  caused  it  to  break,  and  produced  the  injuries 
causing  such  death  at  a  time  when  he  was  acting  as  the  employe 
of  defendant  company,  then  the  company  is  deemed  to  have 
had  knowledge  of  such  defect  at  and  before  the  time  of  such 
injury,  and  the  fact  of  such  defect  is  prima  facie  evidence  of 
negligence  on  the  part  of  defendant  company,  which  simply 
means  that,  in  the  absence  of  any  other  evidence  in  the  case 
bearing  upon  the  knowledge  of  defendant  company,  it  would 
justify  and  require  the  jury  to  presume  that  in  the  respect 
pointed  out  defendant  was  negligent.  This  presumption  which 
arises  under  the  circumstances  named,  however,  is  no  more  than 
a  presumption  which  may  be  met  and  overcome  by  other  proofs 
advanced.  If  such  presumption  arises,  then  upon  the  question 
as  to  whether  defendant  company  actually  knew,  or  by  the 
exercise  of  ordinary  care  could  or  ought  to  have  known  such 
defect,  or  to  put  it  the  other  way,  whether  or  not  defendant 
company  was  negligent,  the  burden  of  proof  is  upon  defendant 
company  to  overcome  such  presumption  or  inference  of  negli- 
gence, not  that  the  company  would  be  required  to  satisfy  you 
that  it  was  not  negligent,  but  to  show,  having  fairly  weighed 
all  the  proofs,  that  it  probably  was  not  negligent. 

Sec.  2033.    Duty  of  railroad  company  as  to  inspection — De- 
fect in  brake-staff. 

The  company  owed  the  duty  to  its  employes  to  exercise 
vigilance  in  using  ordinary  care  to  maintain,  and  in  maintain- 
ing, the  car  and  its  appliances,  and  keeping  the  same  in  reason- 
able repair,  and  in  the  performance  of  this  duty  it  must  exercise 
ordinary  care  in  adopting  means  of  inspection,  with  a  view  of 
determining  its  condition,  and  must  supply  itself  with  facilities 
for  making  repairs  from  time  to  time  when  needed.  If  the 
jury  find  that  the  railway  company  had  in  its  employ  an 
adequate  force  of  careful  and  competent  car  inspectors,  at 
various  places  along  its  line,  through  which  this  car  in  the  course 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1819 

of  traffic  passed,  and  whose  duty  it  was,  and  who  did,  upon 
the  arrival  or  departure  of  said  car,  inspect  the  same  by  a 
careful  examination  and  attention  to  it,  with  a  view  of  determin- 
ing any  visible  or  apparent  defect  in  said  car  or  its  equipments, 
and  if  you  find  that  sufficient  instructions  Avere  given  to  said 
inspectors  as  to  what  to  do  in  their  work,  and  that  such 
instructions  and  method  of  work  were  enforced  by  the  company, 
and  if  you  find  that  shortly  before  this  accident  the  car  was 
inspected  in  this  manner  by  a  careful  and  competent  inspector 

in  the  employ  of  the  R.  R.   Co.,  and  this  defect  in  the 

brake-staff  was  not  discovered  by  said  inspectors,  or  reported 
to  the  company,  and  that  said  company  had  no  knowledge, 
through  any  of  its  agents  or  officers,  of  the  crack  or  flaw  in  the 
brake,  that  then  the  defendant  has  performed  its  duty  to 
decedent  in  that  regard. 

Now,  this  has  a  meaning  that  may  not  be  clearly  apparent 
to  you  in  some  respects.  It  was  not  sufficient  that  the  company 
should  supply  a  sufficient  number  of  competent  inspectors.  The 
company's  duty  went  further  and  required  of  it  when  it 
supplied  the  inspectors  to  also  use  reasonable  care  in  furnishing 
them  reasonably  sufficient  instructions  as  to  the  due  performance 
of  their  duties.  It  would  not  be  a  sufficient  compliance  with  its 
legal  duty  for  the  railway  company  to  provide  sufficient  com- 
petent inspectors  and  leave  them  to  the  performance  of  their 
duties  without  reasonable  instructions  as  to  their  duties  to 
enable  them  to  reasonably  accomplish  the  object  intended,  to-wit: 
The  exercise  of  ordinary  care  to  ascertain  the  condition  of  the 
machinery.  True,  if  the  inspectors  actually  performed  the  duty 
of  ordinary  care  required  of  the  company  as  to  inspections,  it 
would  not  matter  that  the  company  had  failed  to  furnish  proper 
instructions. 

You  will  bear  in  mind  that  for  the  mere  neglect  of  duty 
on  the  part  of  the  inspectors  the  defendant  company  would  not 
be  liable  because  such  inspectors1  are  fellow-servants  with  J. ; 
that  is,  if  you  find  it  was  the  duty  of  the  car  inspector,  in  the 
event  that  there  was  anything  in  the  appearance  or  condition 


1820  INSTRUCTIONS  TO  JURY. 

of  the  visible  portions  of  the  brake-staff  to  raise  a  doubt  as  to 
the  soundness  of  the  hidden  portions,  to  examine  said  hidden 
portion  for  possible  defects,  and  if  you  find  that  there  was,  at 
the  time  of  the  last  inspection  of  said  car,  anything  in  the 
condition  of  the  visible  portions  of  said  shaft  or  rod  which 
would  raise  a  doubt  in  the  mind  of  a  competent  inspector  as 
to  the  soundness  of  the  hidden  portion  thereof,  and  the  inspector 
failed  or  neglected  to  examine  the  same,  and  by  reason  of  his 
failure  so  to  do  the  car  was  passed  into  J.  's  hand,  and  so  caused 
his  death,  for  the  negligence  of  said  inspector  there  can  be  no 
recovery  against  defendant. 

Still,  if  the  inspector's  mode  of  examination  was  a  negligent 
one,  but  it  was  made  in  the  manner  directed  by  the  company, 
or  with  the  full  knowledge  of  the  company  how  it  was  made, 
and  that  manner  was  negligently  defective,  the  defendant  would 
be  liable  for  such  negligence. 

In  its  rules  established  as  to  inspections,  and  the  means 
provided  for  duly  carrying  them  out,  to  the  effect  of  reasonably 
accomplishing  the  legal  end  of  a  due  performance  of  its  duty, 
the  company  was  bound  to  be  vigilant  in  taking  all  reasonable 
precautions;  that  is,  it  was  bound  to  exercise  that  degree  and 
kind  of  care  which  ordinarily  prudent  persons  are  ordinarily 
accustomed  to  exercise  under  the  same  or  similar  circumstances, 
which  you  have  the  right  to  know  and  consider  how  such  matters 
are  regulated  and  carried  on  by  other  railways ;  the  rule  given 
you  does  not  mean  that  if  other  railways  engaged  in  similar 
business  are  accustomed  to  perform  their  duties  in  this  respect 
in  a  negligent  manner,  that  such  fact  would  justify  this  defend- 
ant in  a  similar  negligence. 

The  objective  result  of  this  rule  desired  to  be  reached  is  that, 
in  the  operation  of  the  road  and  the  performance  of  the  duty 
by  the  employe,  he  shall  be  as  reasonably  safe  personally  as 
vigilance  in  the  exercise  of  ordinary  care  for  his  safety  on  the 
part  of  the  company  ordinarily  can  render  him. 

Nor  is  the  mere  exigency  of  their  traffic  any  excuse  relieving 
a  company  from  the  due  exercise  of  ordinary  care  in  maintaining 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1821 

their  machinery  in  a  reasonably  safe  condition.  But  whether  or 
not  such  due  care  is  exercised  must  be  determined,  having  in 
mind,  together  with  the  other  evidence  bearing  thereon,  the 
uses  made  of  such  machinery  in  the  company's  traffic,  and  giving 
due  consideration  to  the  exigencies  thereof,  and  the  natural 
manner  in  which  such  ordinary  care  could  be  reasonably 
exercised,  considering  the  surrounding  situation  and  the  reason- 
able performance  by  the  company  of  its  duties  to  the  public  as 
a  common  carrier,  and  its  other  operations  in  carrying  on  its 
railway  and  business.1 

i  George   F.   Robinson,   J.,    in    The   P.   &   L.    E.    R.   R.    Co.    v.    Johnston's 
Admr.,  S.   C.   4351.     Affirmed  by   circuit   and   supreme  courts. 

Sec.  2034.  Burden  of  proof  of  contributory  negligence  on  de- 
fendant unless  plaintiff's  own  testimony 
raises  inference. 

The  burden  of  proof,  as  I  have  said  to  you,  to  show  negligence 
upon  the  part  of  the  company  is  upon  the  plaintiff.  The 
burden  of  proof  to  show  contributory  negligence  upon  the  part 
of  the  plaintiff  is  upon  the  defendant,  unless,  from  the  plaintiff's 
own  testimony,  it  may  fairly  be  inferred  that  he  was  negligent. 
If,  upon  the  plaintiff's  own  testimony,  a  presumption  may 
fairly  arise  that  he  was  negligent,  then  the  burden  is  upon  him, 
the  plaintiff,  to  remove  that  presumption. 

In  determining  whether  the  plaintiff  contributed  to  his  injury 
by  his  own  want  of  care,  you  will  consider  what  he  knew,  or 
should  have  known,  as  to  the  condition  of  the  roadbed,  and  as 
to  whether  or  not  the  spaces  between  the  ties  were  filled ;  what 
he  saw  at  the  time  of  the  injury,  or  should  have  seen ;  the 
manner  in  which  he  did  his  work,  and  all  the  circumstances  and 
surroundings. 

If  you  find  that  the  plaintiff  was  without  fault,  and  that 
his  injury  was  caused  by  the  alleged  negligence  of  the  company, 
you  will  then  render  a  verdict  in  his  favor. 


1822  INSTRUCTIONS  TO  JURY. 

Sec.  2035.     Contributory  negligence  considered  with  reference 
to  directions  of  master. 

But  it  should  be  remembered  that  where  the  injured  party  acts 
in  obedience  to  the  direction  of  his  master,  or  his  superintendent, 
who  has  authority  to  control  the  conduct  of  the  employe,  and  he 
is  thereby  injured  in  so  doing,  his  obedience  to  said  directions 
will  not  be  deemed  such  contributory  negligence  as  would  defeat 
an  action,  unless  the  danger  was  so  obvious  as  to  make  his  obe- 
dience under  the  circumstances  unreasonable,  having  reference 
to  his  personal  safety  and  the  authority  of  the  master.  If  the 
defendants,  or  their  superintendent,  which  is  the  same  thing, 
induced  the  plaintiff  (or  decedent)  to  act  in  the  manner  he  did, 
and  the  injury  resulted  thereby,  and  the  plaintiff's  (or  dece- 
dent's) obedience  in  that  respect  was  not  unreasonable  under 
the  circumstances,  they  can  not  successfully  set  up  such  acts  as 
a  defense. 

Under  such  circumstances  you  are  instructed  that  the  con- 
tributory negligence  can  not  be  imputed  to  the  plaintiff  (or 
decedent)  if  he  acted  in  good  faith  and  reasonably  under  the 
circumstances  and  pursuant  to  the  express  instruction  of  his 
master,  or  of  his  duly  authorized  superintendent.  It  appears 
to  the  court  to  be  grossly  inconsistent  for  the  defendant  to 
direct  the  decedent  to  do  certain  acts  or  to  perform  certain 
services  in  the  line  of  his  duty  to  them,  and  then  be  permitted  to 
assert  that  the  obedience  to  such  orders  was  negligence  on  his 
part  that  would  defeat  an  action  to  recover  damages  resulting 
from  injuries  caused  thereby,  if  the  plaintiff  (or  decedent) 
acted  reasonably  under  the  circumstances.1 
i  Voris,  J.,   in  Quinn  v.  Ewart,  Summit  Co.  Com.  Pleas. 

Sec.  2036.     Contributory    negligence    of    servant    of    railway 

when  slight  as  compared  with  negligence  of 

master — Present  statutory  rule. 

If  you  find  that  both  plaintiff  and  defendant  were  guilty  of 

negligence,  you  will  then  be  called  upon  to  determine,  by  virtue 

of  this  statute,  which  negligence  was  greater,  that  of  defendant 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1823 

or  of  plaintiff.  Section  9018  of  the  code  now  provides  that  in 
actions  by  an  employe  against  a  railroad  company  for  personal 
injury,  the  fact  that  the  employe  was  guilty  of  contributory 
negligence  shall  not  bar  a  recovery  when  such  negligence  was 
slight  and  that  of  the  employer  greater  in  comparison.  So  that 
if  you  find  that  the  negligence  of  plaintiff  was  slight  as  compared 
with  that  of  defendant,  and  that  its  negligence  was  greater,  your 
verdict  should  be  for  the  plaintiff,  but  in  such  cases  this  statute 
provides  that  the  damages  must  be  diminished  by  the  jury  in 
proportion  to  the  amount  of  negligence  attributable  to  such 
employ. 

If  the  negligence  of  the  plaintiff,  the  employe,  was  greater 
than  that  of  the  defendant,  this  statute  would  not  apply.  There- 
fore, this  is  the  conclusion  of  the  court,  if  under  any  circum- 
stances— if  it  should  appear  in  the  evidence  in  this  case  that  the 
negligence  of  the  plaintiff  was  greater  than  that  of  the  defendant, 
then,  of  course,  the  ordinary  rules  of  evidence  would  apply 
irrespective  of  this  statute,  and  the  jury  would  in  that  event 
be  called  upon  to  determine  what,  as  in  the  ordinary  run  of 
cases  irrespective  of  this  statute  you  would  be  called  upon  to 
determine  what  the  proximate  cause,  or  direct  or  immediate 
cause  of  the  injury  was,  whether  it  was  the  negligence  of  the 
plaintiff  or  that  of  the  defendant.1 

i  Banner    v.   The   C.   C.   C.   &   St.   L.   Ry.   Co.,   Franklin   Co.    Com.   Pleas. 
Kinkead,  J. 

Sec.  2037.  Servant  injured  while  working  on  derrick  car- 
Negligence  by  running  engine  into  same — 
Without  disconnecting  machinery  on  such 
car. 

1.  Law  of  another  state  governs— Negligence  of  a  fellow- 

servant. 

2.  Duty  of  master  to  provide  safe  place  to  work. 

3.  Contributory  negligence. 

4.  Concurrent  negligence. 

5.  Proximate    cause    differentiated   from    concurrent   negli- 

gence 


1824  INSTRUCTIONS  TO  JURY. 

1.  Law  of  another  state  governing.  The  injury  complained  of 
occurred  in  the  state  of  Montana,  by  the  laws  of  which  state  the 
rights  of  the  parties  must  be  determined.  That  state  is  governed 
by  the  common  law  touching  this  question.  Under  the  common 
law  it  was  the  duty  of  the  master,  and  it  was  the  duty  of  the 
defendant  in  this  case,  to  use  due  and  ordinary  care  in  the 
selection  of  servants,  and  to  furnish  proper  means  and  appliances 
for  carrying  on  the  work,  and  to  furnish  a  safe  place  to  work. 
If  the  master,  the  defendant  in  this  case,  performed  this  duty, 
it  was  not  liable  for  injuries  to  plaintiff  as  a  servant  caused  by 
the  negligence  of  a  fellow-servant  engaged  in  the  same  general 
business.  The  master  can  not  be  held  to  be  an  insurer  of  the 
safety  of  the  servant,  being  bound  only  to  the  observance  of 
ordinary  care  for  his  protection.  The  negligence  of  a  fellow 
servant  is  one  of  the  risks  incident  to  the  employment  which 
the  servant  assumes  at  the  time  he  enters  the  employment. 

The  claim  of  the  plaintiff  is  that  he  and  the  defendant's 
servants  were  not  fellow-servants,  but  the  latter  was  the  vice- 
principal  of  defendant  company,  representing  it,  and  performing 
its  duties  at'  the  time.  The  defendant  claims  that  plaintiff  and 
P.  were  fellow-servants,  that  plaintiff  assumed  any  risks  from 
negligent  acts  of  P.,  and  if  the  latter  was  guilty  of  any  negligence 
proximately  causing  his  injury,  that  it  is  not  responsible  there- 
for, and  consequently  it  can  not  be  held  liable  in  this  case. 

It  is  made  clear  therefore,  that  the  jury  should  decide  this 
question  first. 

The  law  by  which  you  will  determine  this  fact  will  be  given 
you  by  the  court  by  the  application  of  which  to  the  evidence  the 
jury  will  make  it's  decision.  The  common  law,  and  the  law  of 
Montana,  is,  that  all  who  serve  the  same  master,  work  under  the 
same  control,  derive  authority  and  compensation  from  the  same 
source,  and  directly  co-operate  with  each  other  in  the  particular 
business,  and  neither  one  of  them  are  invested  with  a  power  of 
control  in  the  conduct  and  management  of  the  business  of  the 
master  so  as  not  to  be  clothed  with,  or  not  to  be  empowered  to 
perform,   the  master's  duties,   or  who  does  not  have   general 


MASTER  AND  SERVANT — NEGLIGENCE  OF  MASTER.  1825 

charge  of  the  construction  work,  or  the  general  control  over  the 
tools  and  machinery,  and  the  places  of  work,  or  the  hiring  and 
discharging  of  employes,  are  to  be  considered  fellow-servants. 

On  the  other  hand,  a  vice-principal  is  one  with  whom  the 
master  invests  the  general  charge,  control  and  supervision  over 
a  particular  work  being  carried  on  by  the  master,  conferring 
upon  him  entire  charge  and  control  over  the  property,  and  the 
employes,  with  power  to  hire  and  discharge,  and  with  power 
over  the  tools  and  machinery,  and  complete  charge  of  con- 
struction work  in  hand  in  the  absence  of  the  master.  A  person 
with  such  powers  is  to  be  regarded  as  a  vice-principal,  and  a 
direct  representative  of  the  master,  for  whose  negligence  in  the 
conduct  of  the  work  and  business  within  the  line  of  his  duty  the 
master  is  responsible. 

If  the  jury  find  that  P.,  the  servant  of  the  defendant,  did 
not  have  control,  management  and  supervision  over  the  work  in 
question  on  behalf  of  the  defendant  company,  that  he  did  not 
have  the  selection  of  the  employes  of  defendant  engaged  in  this 
particular  work,  that  he  was  not  invested  with  control  and 
management  of  the  property  of  defendant,  of  its  employes,  of 
its  tools,  machinery,  and  did  not  have  complete  charge  of  the 
construction  of  the  work  in  hand,  but  that  he  was  a  mere  foreman 
with  power  to  direct  a  gang  of  men,  including  plaintiff,  in  a 
mere  separate  piece  of  work  in  one  of  the  branchps  of  service 
of  defendant,  then  the  jury  should  find  P.  to  be  a  fellow-servant 
of  the  plaintiff  and  not  a  vice-principal  of  the  defendant,  and 
that  it  is  not  responsible  for  any  negligence  of  P.,  if  any  the 
jury  may  find. 

But  if  the  jury  finds  that  P.  was  a  fellow-servant,  and  that 
as  such  he  was  guilty  of  negligence  in  any  of  the  particulars 
charged,  causing  injury  to  plaintiff,  under  the  rule  of  law  that  a 
servant  assumes  the  risks  incident  to  the  negligence  of  his  fellow- 
servant,  your  verdict  should  be  for  the  defendant  and  against 
the  plaintiff. 


1826  INSTRUCTIONS  TO  JURY. 

But  if,  on  the  other  hand,  the  jury  finds  that  the  defendant 
placed  P.  in  the  control,  management  and  supervision  of  the 
work  in  question,  in  the  absence  of  defendant,  with  power  to 
select  servants,  with  general  power  over  the  tools,  machinery 
and  appliances,  and  of  the  furnishing  of  a  place  for  the  plaintiff 
to  work,  then  the  jury  would  be  justified  in  concluding  that  the 
defendant  is  responsible  for  any  negligence  which  it  may  find 
i\  to  have  been  guilty  of,  as  charged  in  the  petition,  if  it 
proximately  caused  the  injury  complained  of.  If  the  jury  should 
so  find,  then  your  attention  is  directed  to  the  specific  charges  of 
negligence  contained  in  the  petition. 

2.  Duty  of  master  to  provide  safe  place  to  work.  It  was  the 
duty  of  the  defendant  to  use  ordinary  care  to  furnish  plaintiff 
a  safe  place  to  work.  Whether  defendant  did  this  is  a  pure 
question  of  fact  for  the  jury  to  determine  from  the  evidence. 
The  defendant  was  not  an  insurer  of  the  safety  of  the  plaintiff, 
being  bound  merely  to  use  ordinary  care  in  placing  him  at  work, 
and  in  the  inspection  of  the  machinery,  looking  to  the  safety 
of  the.  plaintiff  while  at  the  work  assigned  to  him,  as  well  as 
ordinary  care  in  directing  the  movement  of  the  car  on  which 
plaintiff  had  been  assigned  to,  and  was  at  work,  as  well  as  to  use 
ordinary  care  in  giving  reasonable  warnings  to  plaintiff  of  the 
intention  to  move  the  car  while  the  latter  was  at  work  thereon, 
so  as  to  avoid  injury  to  him.  You  will  also  determine  whether 
the  defendant  exercised  a  power  of  control  over  the  engine  used 
in  moving  the  car  on  which  plaintiff  was  working.  You  will 
look  to  the  evidence  and  determine  under  the  instructions, 
whether  defendant  used  ordinary  care  in  the  particulars  named, 
or  whether  it  failed  to  do  so,  and  was  negligent.  If  you  find 
that  the  defendant  was  not  guilty  of  the  negligence  in  any  of 
the  particulars  alleged,  that  will  be  the  end  of  your  deliberation, 
and  your  verdict  should  be  for  the  defendant.  But  if  you  find 
that  the  defendant  was  guilty  of  negligence  in  the  particulars 
charged,  or  in  any  one  of  them,  you  will  then  determine  whether 
such  negligence  on  the  part  of  the  defendant  proximately  caused 
the  injury  to  plaintiff. 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1827 

3.  Contributory  negligence.  It  is  charged  by  the  defendant 
that  if  it  be  found  that  it  was  negligent  in  any  of  the  respects 
alleged  in  the  petition,  that  the  plaintiff  himself  was  guilty  of 
negligence  which  directly  contributed  to  and  was  the  proximate 
cause  of  his  injury.  It  is  averred  that  plaintiff  assumed  an 
unsafe  position  while  working  on  the  engine ;  that  he  failed  to 
observe  the  danger  which  was  obvious  and  incident  to  the  work : 
that  if  the  car  was  in  gear  when  he  went  to  work  he  was  guilty 
of  negligence  in  failing  to  observe  that  fact,  and  that  he  failed 
to  observe  ordinary  care  for  his  own  safety. 

In  other  words,  it  is  charged  that  plaintiff  was  guilty  of  con- 
tributory negligence.  Contributory  negligence  can  operate  to 
defeat  plaintiff's  recovery  for  the  negligence  of  the  defendant 
only  when  it  directly  and  proximately  causes  the  injury ;  or  when 
both  plaintiff  and  defendant  were  guilty  of  negligence,  and  the 
negligence  of  both  of  them  directly  contributed  to  cause  the 
injury  complained  of. 

The  burden  of  proving  contributory  negligence  is  upon  the 
defendant,  unless  the  evidence  introduced  by  plaintiff  himself 
tends  to  show  that  the  plaintiff  was  guilty  of  negligence.  If 
contributory  negligence  is  suggested  by  plaintiff's  own  evidence, 
then  the  burden  is  on  him  to  remove  the  suggestion  or  inference, 
and  show  himself  blameless  to  the  jury.  If  it  is  not  so  suggested 
by  plaintiff's  own  evidence,  then  the  burden  of  establishing  it 
rests  upon  the  defendant,  which  he  must  do  by  a  preponderance 
of  evidence. 

Plaintiff  can  not  recover  compensation  for  an  injury  which  he 
might  have  avoided  by  the  use  of  ordinary  care  and  prudence 
under  the  circumstances.  So  if  the  plaintiff  did  not  take  reason- 
able care  under  the  circumstances,  and  he  thereby  proximately 
caused  the  injuries,  he  can  not  recover.  All  that  the  law 
requires  of  the  injured  party  in  this  respect  is  that  be  should  act 
with  reasonable  care  and  prudence  under  the  circumstances 
known  to  him,  considering  the  means  of  knowledge  he  had,  the 
nature   of  the   work   which   he  had  been   performing   for   the 


1828  INSTRUCTIONS  TO  JURY. 

defendant,  and  his  knowledge  and  familiarity  with  the  machinery 
and  appliances  about  which  he  was  set  to  work,  and  his  previous 
opportunity,  and  his  opportunity  at  the  time,  to  learn  thereof, 
his  inexperience,  intelligence,  and  judgment  as  you  may  find 
them  to  be  from  the  evidence. 

4.  Concurrent  negligence.  If  you  find  that  both  plaintiff  and 
defendant  were  guilty  of  negligence,  and  that  the  negligence 
of  both  was  contemporaneous  and  continuing  until  after  the 
injury,  and  that  the  negligence  of  each  was  a  direct  cause  of 
the  injury,  without  which  it  would  not  have  occurred,  the  plain- 
tiff may  not  recover,  and  your  verdict  should  be  for  the  defend- 
ant. But  if  you  find  that  the  negligence  of  the  plaintiff,  if  he 
was  guilty  of  negligence,  was  not  contemporaneous  and  con- 
tinuing, as  stated,  you  will  then  determine  whether  the  negli- 
gence of  plaintiff  or  of  the  defendant  was  the  proximate  cause 
of  the  injury.  The  law  regards  the  proximate  cause  attaching 
legal  consequences  thereto.  Consequently  the  jury  must  under- 
stand the  meaning  of  the  term. 

5.  Proximate  cause  differentiated  from  concurrent  negligence. 
The  proximate  cause  of  an  injury  is  that  cause  which  in  a 
natural  and  continuous  sequence,  unbroken  by  any  new,  indepen- 
dent cause,  produces  the  injury,  and  without  which  the  injury 
would  not  have  occurred.  Under  the  rules  given  the  jury 
concerning  the  alleged  negligence  of  both  plaintiff  and  defendant, 
the  jury  is  instructed  that  if  it  should  find  that  the  plaintiff 
was  guilty  of  negligence  in  any  of  the  particulars  charged,  and 
that  the  defendant  was  also  guilty  of  negligence,  but  that  the 
negligence  of  plaintiff  was  not  contemporaneous  nor  continuing 
with  that  of  the  defendant,  and  that  the  plaintiff's  negligence, 
without  the  intervention  of  the  negligent  act  of  the  defendant, 
would  not  have  produced  the  injury,  and  that  the  negligence  of 
the  defendant  in  such  case  was  a  new  and  independent  cause, 
without  which  the  injury  would  not  have  occurred,  and  that  the 
same  produced  the  injury,  your  verdict  should  be  for  the 
plaintiff. 


MASTER  AND  SERVANT — NEGLIGENCE  OP  MASTER.  1829 

But  if  you  find  that  the  negligence  of  the  plaintiff  was  not 
concurrent  with  that  of  the  defendant,  and  that  there  was  no 
intervening,  new,  or  independent  negligence  of  the  defendant, 
which  produced  the  injury,  but  that  the  negligent  act  of  the 
plaintiff  produced  the  injury,  your  verdict  should  be  for  the 
defendant.1 

i  Madison  v.  Pittsburg  Const.  Co.,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 
Case  affirmed  by  circuit  and  supreme  court. 

Sec.  2038.     Death,  of  engineer  from  derailment  of  train. 

1.  General  duty  of  plaintiff. 

2.  Defendant  not  an  insurer — Ordinary  care  required. 

3.  Rule  of  ordinary  care  varies  under  circumstances. 

4.  Negligence  must  cause  injury. 

5.  Excessive  speed  as  cause  of  derailment  of  tram. 

1.  General  duty  of  defendant  to  plaintiff.  I  will  first  state  to 
you,  gentlemen  of  the  jury,  the  general  rule  of  law  as  to  the 
duty  which  the  defendant  owed  to  the  plaintiff's  decedent.  It 
was  the  duty  of  the  defendant  to  exercise  reasonable  and 
ordinary  care  to  furnish  the  plaintiff's  decedent  a  safe  place  to 
work,  and  safe  machinery,  tools  and  appliances  with  which  to  do 
his  work.  That  rule  required  of  the  defendant  that  it  should 
use  ordinary  care  for  the  safety  of  the  plaintiff's  decedent. 

2.  Defendant  not  an  insurer — Ordinary  care  required.  The 
law  does  not  make  the  defendant  an  insurer  of  the  safety  of  its 
employes  so  that  a  liability  is  not  established  against  it  upon 
making  proof  merely  that  its  employes  suffered  an  injury  while 
in  its  service  and  in  the  course  of  his  employment,  but  the  rule 
required  at  its  hands  that  it  should  use  that  degree  of  care  for 
his  safety  which  persons  of  ordinary  care  and  prudence  are 
accustomed  to  exercise  under  like  circumstances  and  conditions. 
So  that  if  you  find  in  this  case,  gentlemen  of  the  jury,  that  in 
the  respects  in  which  the  plaintiff  claims  the  defendant  was 
guilty  of  a  want  of  care  for  the  plaintiff's  decedent,  it  did  use 
ordinary  care  for  his  safety,  as  I  have  defined  ordinary  care, 


1830  INSTRUCTIONS  TO  JURY 

but  that  notwithstanding  such  ordinary  care  on  its  part  for  his 
safety,  the  accident  occurred,  then  the  plaintiff  is  not  entitled  to 
a  verdict  at  your  hands,  and  your  verdict  should  be  for  the 
defendant. 

3.  Rule  of  ordinary  care  varies  with  circumstances.  But  if 
you  find  that  the  defendant  was  negligent  in  som<  one  or  more 
or  all  of  the  respects  alleged  in  the  amended  petition,  and  that 
this  negligence — this  want  of  ordinary  care — was  the  proximate 
cause  of  the  derailment  of  the  train  and  the  consequent  death  of 
plaintiff's  decedent,  then  the  plaintiff  is  entitled  to  a  verdict  at 
your  hands.  I  have  just  said  to  you,  gentlemen  of  the  jury,  that 
the  rule  of  duty  which  the  defendant  owed  to  the  plaintiff's 
decedent  was  to  use  ordinary  care — that  is  that  degree  of  care 
which  persons  of  ordinary  care  and  prudence  are  accustomed  to 
exercise  under  like  circumstances  and  conditions.  This  is  always 
the  rule  which  measures  the  duty  of  the  master  to  his  servant, 
but  when  this  care  is  called  into  exercise  under  circumstances 
of  peculiar  peril,  a  greater  amount  of  care  is  required  than  where 
the  circumstances  are  less  perilous.  This  is  so  because  ordinarily 
prudent  and  careful  persons,  having  in  view  the  object  to  be 
attained,  and  a  just  regard  for  the  rights  of  others,  are,  under 
circumstances  of  peculiar  peril,  accustomed  to  exercise  greater 
care  than  where  the  circumstances  are  less  perilous.  The  amount 
of  care  is  increased  where  the  peril  is  greater,  and  in  proportion 
to  the  increase  of  the  peril,  but  the  rule  or  standard  remains  the 
same,  that  is,  ordinary  care  under  the  circumstances  of  the 
particular  case. 

4.  Negligence  must  cause  injury.  No  presumption  of  negli- 
gence arises  against  the  defendant  from  the  mere  "fact  that  the 
train  was  derailed.  The  plaintiff  alleges  in  her  petition  that  the 
accident  happened  by  reason  of  the  concurrence  of  several 
causes,  and  that  these  causes  were  due  to  negligence  or  want  of 
due  care  on  the  part  of  the  defendant.  Negligence  may  consist 
either  in  doing  something  which  ought  not  to  have  been  done, 
or  in  omitting  to  do  something  which  ought  to  have  been  done. 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1831 

To  entitle  the  plaintiff  to  recover,  it  must  appear  from  a  pre- 
ponderance of  the  evidence,  that  is,  the  greater  weight  of  the 
evidence,  that  the  defendant  was  negligent  in  one  or  more  or  all 
of  these  respects  alleged  in  the  petition,  and  that  this  negligence 
on  the  part  of  the  defendant  was  the  proximate  cause  of  the 
derailment  of  the  train.  But  it  is  not  essential  to  a  recovery 
on  her  part  that  the  evidence  shall  establish  that  the  defendant 
was  guilty  of  negligence  in  all  of  the  respects  alleged  in  the 
petition.  It  is  sufficient  if  the  proof  establishes  the  fact  that 
the  defendant  was  guilty  of  negligence  in  one  or  more  of  these 
respects,  provided  it'  also  appears  from  a  preponderance  of  the 
evidence  that  the  negligence  established  was  the  proximate  cause 
of  the  derailment  of  the  train.  By  proximate  cause  is  meant  the 
direct  cause  producing  the  injury  as  distinguished  from  the 
remote  cause  of  the  injury. 

5.  Excessive  speed  as  cause  of  derailment  of  train.  The  peti- 
tion also  charges  that  the  derailment  of  the  train  was  in  part  due 
to  the  excessive  speed  at  which  the  train  was  being  run  at  the 
time  of  the  accident,  and  it  is  charged  that  this  speed  was  due  to 
the  order  and  direction  of  DeV.  and  E.,  who  are  alleged  in  the 
petition  to  have  been  superior  authority  over  the  plaintiff's 
decedent,  and  with  power  and  authority  to  direct  and  control 
his  conduct,  that  the  plaintiff's  decedent  was  not  familiar  witli 
the  operation  of  the  engine,  and  did  not  have  any  knowledge 
of  its  operation  in  the  passenger  service,  nor  with  the  speed 
which  it  could  safely  develop,  and  that  this  was  known  to  the 
defendant,  and  that  DeV.  and  E.  were  placed  on  the  train  for 
the  purpose  of  directing  the  plaintiff's  decedent  in  the  operation 
of  the  train.  If  you  find  that  the  engine  was  being  run  at  the 
time  of  the  accident  by  E.,  the  road  foreman  of  engines,  and 
that  the  derailment  was  due  to  the  excessive  and  dangerous  and 
negligent  rate  of  speed — that  is,  to  such  a  rate  of  speed  ;is 
amounted  to  negligence  on  his  part  under  the  rules  which  I  have 
stated — or  that  it  was  due  to  the  negligent  and  dangerous  rate 
of  speed  combined  with  other  acts  of  negligence  charged  in  the 
petition  against  the  defendant,  then  the  defendant  will  be  liable. 


1832  INSTRUCTIONS  TO  JURY. 

But  if  you  find  the  rate  of  speed  was  not  excessive,  dangerous 
and  negligent  under  all  the  circumstances  and  conditions  dis- 
closed by  the  evidence,  then  there  can  be  no  recovery  against  the 
defendant  upon  that  ground,  and  that  is  true  whether  the 
engine  was  being  run  by  E.  or  by  the  plaintiff's  decedent  under 
the  orders  of  E.1 

>Milbourne,  Admrx.   v.   The  Hocking  Valley  Ry.  Co.,   Com.  Pleas    Court, 
Franklin  Co.,  O.     Bigger,  J. 

Sec.  2039.  Failure  to  warn  and  instruct  servant  and  to  suf- 
ficiently light  machinery — Injury  to  servant 
in  operating  power  shears. 

1.  Statement  of  claims. 

2.  Burden  and  degree  of  evidence. 

3.  Failure  to  observe  ordinary  cdre  by  either  party  con- 

stitutes negligence. 

4.  Proximate  cause. 

5.  Plaintiff's  own  evidence  raising  inference  of  negligence. 

6.  Whether  defendant  required  to  warn  plaintiff  for  jury. 

7.  Bide  of  law  as  to  obvious  danger. 

8.  Duty  to  light  machinery. 

1.  Statement  of  claims.  The  particular  acts  of  negligence 
charged  against  the  defendant  are : 

First.  That  it  failed  to  instruct  and  warn  plaintiff  of  the 
dangers  of  said  work. 

Second.  That  defendant  failed  to  provide  a  safe  place  to 
work  in  that  it  was  not  sufficiently  lighted  for  him  to  see  how 
to  do  the  work  with  safety. 

These  two  claims  are  the  only  ones  submitted  to  the  jury. 

The  defendant  denies  that  it  was  negligent  at  all,  and  claims 
that  if  it  was  guilty  of  any  negligence  as  alleged  by  plaintiff,  the 
injury  sustained  by  the  plaintiff  was  caused  by  his  own  negli- 
gence, the  alleged  negligence  contributing  proximately  to  his 
injury  consisting  in  his  act  of  placing  himself  and  remaining, 
without  necessity,  in  a  position  of  obvious  danger,  by  placing 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1833 

his  hand  and  allowing  it  to  remain  in  a  place  and  position  of 
obvious  danger  when  it  was  not  necessary  so  to  do,  so  that  by 
the  usual  operation  of  the  power  shears  in  cutting  the  rails, 
plaintiff  was  injured. 

By  reply  plaintiff  denies  that  he  was  negligent  thus  causing 
his  injury. 

2.  Burden  and  degree  of  evidence.  The  burden  is  upon  the 
plaintiff  to  prove  that  defendant  was  negligent  as  charged,  and 
that  the  same  caused  the  injury  to  him.  This  must  be  done  by 
preponderance  of  the  evidence;  that  is,  the  greater  weight 
thereof. 

The  credibility  of  the  witnesses,  the  credit  and  weight  to  be 
given  them  is  within  your  exclusive  province. 

3.  Failure  to  observe  ordinary  care  by  either  party  constitutes 
negligence.  The  failure  to  observe  ordinary  care  in  performing 
the  duties  required  by  the  circumstances  in  this  case  respectively 
of  plaintiff  and  defendant  would  constitute  negligence. 

The  rule  of  ordinary  care  required  of  the  parties  in  this  case 
must  properly  be  what  is  reasonably  and  ordinarily  required  by 
the  nature  of  the  case  and  such  as  the  circumstances  reasonably 
and  ordinarily  called  for.  Anything  less  than  this  must  be 
regarded  as  negligence,  and  whenever  such  negligence  of  the  one 
or  the  other  parties  in  failing  to  observe  the  care  required  of 
each  of  them  produces  the  injury,  this  furnishes  the  basis  of 
legal  responsibility. 

4.  Proximate  cause.  The  act  of  but  one  party  can  constitute 
the  proximate  cause  of  injury  to  which  the  law  attaches  legal 
consequences. 

If  the  defendant  was  negligent,  and  its  negligent  acts  and 
not  those  of  plaintiff,  produces  the  injury,  then  the  verdict  may 
determine  it's  legal  liability. 

Though  the  defendant  be  negligent,  still  if  the  plaintiff  him- 
self be  negligent,  and  it  be  found  that  his  own  negligent  conduct 
and  not  that  of  the  defendant,  directly  caused  the  injury,  then 
the  verdict  will  be  that  he  is  entitled  to  no  relief. 

5.  Plaintiff's   own   evidence   raising  inference   of  negligence. 


1834  INSTRUCTIONS  TO  JURY. 

If  plaintiff's  own  evidence  raises  an  inference  that  he  himself 
was  negligent,  the  burden  is  on  him  to  remove  this  suggestion, 
and  show  himself  free  from  negligent  acts  producing  his  own 
injury.  If  there  be  no  such  inference  of  negligence,  then  defend- 
ant must  show  such  contributory  negligence  on  the  part  of 
plaintiff  as  directly  caused  the  injury,  this  to  be  made  to  appear 
by  a  preponderance  of  evidence. 

G.  Whether  defendant  required  to  warn  plaintiff  for  jury. 
The  court  submits  this  case  to  the  jury  for  it  to  decide  whether 
under  the  circumstances  of  this  case,  ordinary  care  required 
defendant  to  notify,  instruct  or  warn  plaintiff  of  any  dangers 
arising  from  the  operation  of  the  machine,  and  whether  the 
defendant  used  ordinary  care  in  lighting  the  machinery  so  as 
to  enable  the  plaintiff  to  do  the  work  in  safety. 

If  there  was  any  danger  arising  from  the  operation  of  the 
machine  in  this  case  the  question  for  the  jury  to  decide  is 
whether  it  was  apparent  or  obvious  or  hidden. 

Whether  there  was  an  obvious  danger  in  the  operation  of  the 
machine  is  a  question  which  the  jury  must  determine  before 
deciding  whether  any  warning  or  instructions  were  necessary 
to  be  given  by  the  defendant  to  plaintiff,  and  the  failure  to  give 
the  same  was  negligence. 

7.  Rule  of  law  as  to  obvious  danger.  Where  a  danger  in  the 
operation  of  machinery  is  obvious  it  will  be  presumed  that  an 
adult  servant  of  ordinary  intelligence,  whether  he  speaks  and 
understands  our  language  or  not,  may  be  capable  of  learning  and 
knowing  the  usual  or  ordinary  apparent  dangers  arising  there- 
from. If  the  dangerous  condition  be  such  as  would  be  apparent 
to  an  ordinarily  intelligent,  casual  observing,  prudent  person,  or 
such  as  may  be  readily  seen  and  observed  by  him. 

The  master  owes  no  duty  whatever  to  give  instructions  or 
warning  to  such  person,  or  to  no  one  else  in  the  case  of  an 
obvious  danger  in  the  operation  of  machinery,  unless  it  be  to  one 
who  is  inexperienced,  if  such  danger  may  not  be  obvious  to  one 
without  such  experience. 


MASTER  AND  SERVANT NEGLIGENCE  OP   MASTER.  1835 

The  duty  to  give  instructions  or  warning  to  the  plaintiff  was 
not  incumbent  on  defendant  in  this  case,  unless  there  was  danger 
in  the  operation  of  the  machine  known  to  defendant,  or  which 
ought  to  have  been  known  to  it,  unless  it  appears  that  by  reason 
of  the  inexperience  of  the  plaintiff  the  defendant  had  reason 
to  believe  the  plaintiff  did  not  know  and  would  not  discover  it  in 
time  to  protect  himself  from  injury.      [9  O.  C.  C.  680.] 

If  it  appear  that  there  were  elements  of  danger  in  the  opera- 
tion of  the  machinery  which  were  or  ought  to  have  been  obvious 
to  this  plaintiff,  and  that  he  had  average  intelligence  or  capacity, 
though  without  much  experience,  using  due  care  to  appreciate, 
learn  and  know  of  such  dangers,  and  that  he  ought  to  have  known 
thereof,  and  that  ordinary  prudence  on  his  part  would  enable 
him  to  avoid  injury,  then  in  such  case,  no  wrarning  would  be 
necessary. 

8.  Duty  to  light  machinery.     It  was  the  duty  of  the  defendant 

use  ordinary  care  in  lighting  the  machinery  considering  the 

nature  of  the  work  and  the  machinery,  in  a  reasonably  sufficient 

Manner  to  enable  the  plaintiff,  himself  using  due  care,  to  do  his 

work  in  safety. 

If  the  jury  find  that  no  warning  or  instructions  were  necessary 
to  be  given  plaintiff,  according  to  the  law  given  you  in  this 
charge,  and  you  further  find  that  there  was  adequate  light,  your 
verdict  should  be  for  the  defendant. 

If  warning  and  instructions  should  have  been  given,  and  were 
not  given,  and  the  place  was  not  sufficiently  lighted  to  enable 
plaintiff  to  do  his  work  safely,  himself  using  reasonable  care, 
and  he  was  injured  by  reason  of  the  neglect  of  the  defendant  in 
these  particulars  he  is  entitled  to  your  verdict.1 
'  Franklin   Co.  Com.   Picas.   Kinkead,   J. 

Sec.  2040.     Injury  caused  by  defective  gny  supporting  der- 
rick. 

1.  Statement  of  claim — Defective  guy. 

2.  Defect,  defective,  meaning. 

3.  Knowledge  of  defect — Reliance  upon  promise  to  repair. 


1836  INSTRUCTIONS  TO  JURY. 

4.  Appliance  of  simple  construction — Rule  to  be  applied — 

Bisk  assumed 

5.  Reliance   on  promise   to  repair  only   when  servant  -has 

limited   knowledge   or   where   some   measure   of   skill 
required. 

6.  Instructions  given  by  master — Effect  of  disobedience  by 

servant. 

1.  Statement  of  claim  of  negligence.  The  sole  charge  of  neg- 
ligence is  that  one  of  the  guys  supporting  the  derrick  was  de- 
fective in  that  the  same  was  pieced  with  a  chain  which  contained 
an  open  link. 

Negligence  being  the  omission  to  use  such  care  as  ordinarily 
prudent  persons  use  under  the  same  or  similar  circumstances, 
ordinary  care  in  this  case  would  be  such  care  as  those  persons 
who  are  engaged  in  the  business  of  operating  derricks  for  this 
purpose,  or  similar  purposes,  are  accustomed  to  exercise  in  the 
manipulation  and  operation  of  such  instrumentalities. 

Repeating  now  the  charge  of  negligence,  that  one  of  the  guys 
supporting  said  derrick  was  defective  in  that  the  same  was 
pieced  with  a  chain  which  contained  an  open  link;  that  plaintiff 
notified  defendant  of  such  defective  guy  and  of  its  dangerous 
condition,  which  defect  said  defendant  promised  to  make  safe, 
and  that  said  injuries  were  caused  by  the  negligence  of  the 
defendants  in  not  repairing  the  said  defective  guy. 

There  is  some  difficulty  in  interpreting  the  language  of  plain- 
tiff so  as  to  arrive  at  his  meaning  wherein  he  charges  the  defect 
in  the  guy.  The  plaintiff,  remember,  must  recover,  if  at  all. 
only  upon  the  theory  of  his  allegations  and  upon  the  grounds 
of  negligence  alleged,  and  upon  no  other. 

The  question  is  whether  the  petition  charges  that  the  guy  was 
defective  in  that  it  was  merely  pieced  with  a  chain  instead  of 
all  being  cable — that  is,  whether  the  defect  charged  is  that  the 
guy  was  pieced  with  a  chain  rather  than  of  being  cable,  or 
whether  no  complaint  is  made  as  to  the  use  of  the  chain,  but 
rather  that  the  complaint  is  that  the  defect  charged  was  that 
an  open  link  was  used  in  the  chain.     The  claim  of  the  plaintiff, 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1837 

as  shown  by  the  evidence,  seems  to  have  been  based  upon  an 
interpretation  of  the  pleading  that  the  defect  in  the  guy  con- 
sisted in  the  use  of  the  chain  rather  than  the  particular  defective 
link  in  it.  One  thing  is  certain,  gentlemen,  defective  appliances 
is  the  gist  or  basis  of  this  charge. 

2.  Defect,  or  defective,  meaning.  The  defect  alleged  in  the 
derrick  being  that  the  cable  was  pieced  with  a  chain  which  con- 
tained an  open  link,  I  can  only  aid  you,  gentlemen,  in  arriving 
at  your  conclusion  by  instructing  you  that  "defect"  or  "defect- 
ive," as  used  in  the  averment  by  the  plaintiff,  is,  in  law,  or  may 
be  considered,  in  law,  as  a  charge  of  the  absence  of  something 
necessary  for  completeness  or  perfection ;  it'  includes  the  idea 
of  a  fault  or  want  of  perfection  in  the  construction  of  the  guy, 
which  impairs  or  weakens  it  and  renders  it  unsafe  for  the  use 
for  which  it  is  intended.  The  charge  of  defectiveness  made  in 
the  pleading  excludes  the  idea  of  the  mere  use  of  an  appliance 
such  as  is  ordinarily  used  by  ordinarily  prudent  persons  familiar 
with  and  skilled  in  the  use  of  such  instrumentalities  under  simi- 
lar circumstances  and  for  similar  purposes.  That  is  the  best 
that  I  can  do,  gentlemen,  in  the  way  of  explaining  to  you  this 
allegation,  and  I  have  carefully  marked  out  to  you  what  I  think 
it  includes,  and  what  it  excludes,  so  that  you  would  have  no 
difficulty  in  looking  to  the  evidence  and  determining  the  ulti- 
mate fact  as  to  whether  or  not  there  was  any  negligence. 

You  will  proceed  by  the  application  of  these  rules  touching 
the  matter  of  defects  and  determine  whether  the  derrick  and 
guy  were  defective  in  the  manner  charged  by  the  petition  and 
as  construed,  defined  and  explained  by  the  court,  or  whether 
they  were  constructed  in  a  manner  as  are  used  by  ordinarily 
prudent  persons  using  similar  instrumentalities.  If  you  find 
that  they  were  and  that  there  was  no  defective  link,  ;is  i-harged, 
then  your  verdict  should  be  for  the  defendant. 

3.  Knoicledf/r  of  defect — Reliance  upon  promise  to  repair. 
If,  however,  you  find  that  the  guy  was  defective  in  the  manner 
charged,  then  you  will  proceed  to  the  further  consideration  of 
the  conduct  of  plaintiff  himself,  for  the  purpose  of  determining 


1838  INSTRUCTIONS  TO  JURY. 

whether  his  conduct  was  such  as  in  law  and  in  fact  entitled 
him  to  recover.  Plaintiff  avers  that  he  learned  of  the  alleged 
defective  guy,  that  he  called  the  attention  of  the  defendants  to 
such  defects,  and  that  defendants  promised  to  remedy  the  same. 
Plaintiff  claims  that  he  continued  on  in  bis  work  without  the 
defect  complained  of  by  him  having  been  remedied,  relying 
upon  the  promise  made  by  defendants  to  have  remedied  the 
alleged  defect. 

4.  Appliance  of  simple  construction — Rule  to  be  applied — 
Risk  assumed.  The  rule  of  law  governing  this  phase  of  the 
question  in  controversy  is  as  follows :  If  the  appliances  or 
instrumentalities  are  of  simple  construction  and  the  complain- 
ant, the  plaintiff  here,  was  engaged  in  ordinary  labor,  using 
such  appliances  or  instrumentalities,  that  is  of  simple  construc- 
tion, and  he  was  entirely  familiar  with  the  same,  understanding 
them  as  fully  as  did  the  master,  then  the  plaintiff  must  be  held 
to  have  assumed  the  risk  incident  to  their  use,  and  in  such  case 
he  can  not  recover. 

5.  Reliance  on  promise  to  repair  only  when  servant  has  limited 
knowledge,  or  where  some  measure  of  skill  required.  The  serv- 
ant, the  plaintiff  in  this  case,  was  warranted  in  relying  upon  the 
alleged  promise  of  defendants  to  repair,  if  one  was  made,  and 
in  continuing  in  the  use  of  alleged  defective  appliances,  only, 
if  he  had,  I  may  say,  a  limited  and  imperfect  knowledge  thereof, 
and  only  where  some  measure  of  skill  and  experience  possessed 
by  persons  more  than  one  would  have  in  dealing  with  ordinary 
tools  and  appliances  and  an  ordinary  workman,  to  enable  the 
servant,  the  plaintiff  here,  to  know  and  appreciate  the  particu- 
lar defect,  if  there  was  one,  and  the  danger  incident  thereto. 
If,  therefore,  you  find  from  the  evidence  that  the  appliances  or 
instrumentalities  in  this  case  as  shown  by  the  evidence  were 
not  of  simple  construction,  but  that  it  would  require  some  spe- 
cial knowledge  and  skill  to  have  enabled  the  plaintiff  here  to 
know  whether  a  derrick  constructed  as  the  evidence  shows  this 
derrick  to  have  been  constructed,  and  as  you  find  to  have  been 
constructed,  and  that  constructed  as  it  was  it  would  be  or  was 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1839 

inadequate  to  specially  lift  the  logs  which  were  being  lifted  at 
the  time,  you  will  then  determine  from  the  evidence  whether 
the  plaintiff  had  or  had  not  sufficient  knowledge  and  skill  as 
enabled  him  to  know  and  appreciate  the  danger  incident  to  the 
continued  use  of  the  derrick.  If  you  find  that  it  required  some 
knowledge  and  skill  to  know  and  appreciate  the  dangers  from 
the  derrick,  if  it  was  defective,  and  that  plaintiff  did  not  pos- 
sess sufficient  knowledge  to  know  and  appreciate  the  dangers 
incident  to  its  use  and  did  not  know  and  appreciate  such 
dangers  and  that  he  continued  in  reliance  upon  a  promise  made 
by  the  defendants  to  remedy  the  alleged  defect  and  that  the 
injury  caused  by  the  falling  of  the  derrick  was  due  to  the  alleged 
defective  construction,  then  your  verdict  should  be  for  the 
plaintiff. 

You  will  keep  in  mind,  however,  that  to  warrant  such  a  find- 
ing the  derrick  must  not  have  been  of  simple  construction  and 
easily  understood  by  ordinary  workmen,  but  there  must  have 
been  a  defective  construction,  the  defendants'  attention  must 
have  been  called  thereto,  and  they  must  have  promised  to  remedy 
the  same,  the  plaintiff  must  have  relied  upon  the  same.  You 
must  find  all  these  facts  by  a  preponderance  of  the  evidence  to 
warrant  you  in  finding  for  the  plaintiff. 

6.  Instructions  given  by  master — Effect  of  disobedienee  by 
servant.  There  has  been  some  evidence  here  tending  to  show  that 
certain  directions  were  given  by  the  master,  the  defendants  in 
this  case,  to  the  workmen  there  engaged  in  working  this  derrick, 
that  they  should  do  certain  things  with  reference  to  the  large 
log.  You  will  remember  the  evidence  upon  that.  The  plain- 
tiff, you  will  recall,  has  denied  any  knowledge  of  having  heard 
any  directions  given  to  saw  the  log  in  two  before  they  undertook 
to  raise  it.     The  court  says  to  you  that   it'  yon   find   the  men 

engaged  in  operating  tin's  derrick  other  than  plaintiff  had  1 n 

instructed  by  the  defendant  not  to  lift  the  log  in  question  until 
it  had  been  cut  in  two,  and  you  find  that  at  the  lime  of  plaintiff's 
injury  they  were  lifting  such  log  without  having  if  lirsl  cut  in 
two,  in  disobedience  of  their  instructions  from  the  defendant, 


1840  INSTRUCTIONS  TO  JURY. 

and  that  such  disobedience  of  the  orders  given  them  caused  the 
fall  of  the  derrick,  then  plaintiff  can  not  recover  for  the  negli- 
gence of  the  other  employes  engaged  with  him  at  the  derrick 
in  thus  disobeying  their  instructions,  because  such  negligence 
would  be  the  negligence  of  a  fellow  servant  for  which  the  plain- 
tiff can  not  recover.  There  would  be  an  exception  to  that,  how- 
ever, that  if  they  proceeded  to  raise  this  log  under  the  directions 
of  a  foreman,  who  is  a  vice-principal  in  law,  and  represents  the 
principal,  they  would  be  justified  in  acting  upon  his  directions, 
and  if  he  was  careless  and  negligent,  the  servant  would  not  be 
barred  by  that  act  because  he  represents  the  principal  and  it 
is  the  same  as  the  principal  acting  himself,  and  if  there  was 
any  negligence  the  plaintiff  would  be  entitled  to  recover. 

The  damages  are  set  forth  and  alleged  in  the  petition  and 
in  the  event  that  you  find  a  verdict  in  favor  of  the  plaintiff  you 
will  then  consider  the  question  of  damages  and  the  evidence 
offered  in  support  thereof  and  will  award  to  the  plaintiff  such 
damages  as  in  your  judgment  will  compensate  him  for  the  loss 
sustained.  There  is  an  allegation  in  the  plaintiff's  petition  that 
seeks  to  recover  the  sum  of  $25.00  for  special  damages  for  money 
expended  by  way  of  physician's  services,  and  it  is  my  duty  to 
say  to  you  that  there  is  no  evidence  here  to  support  that  claim 
and  that  therefore  you  will  disregard  it.1 
i  Franklin  Co.  Com.  Pleas,  Kinkead,  J.     Charge  approved  by  circuit  court. 

Sec.  2041.  Railroad  company  may  make  rules  governing  con- 
duct of  employee — Duty  of  employee  with 
reference  to. 

"A  railroad  company  has  the  right  to  make  such  rules  and 
regulations  for  the  conduct  of  its  servants  and  agents  while 
engaged  in  its  service  as,  in  its  judgment,  are  reasonable  and 
proper,  as  would  conduce  to  the  safety  and  comfort  of  its  em- 
ployees; and  all  servants,  while  engaged  in  such  service,  with 
a  knowledge  of  such  rules  and  regulations,  are  bound  to  act  in 
conformity  therewith ;  and  if  injuries  are  sustained  by  them 
while  acting  in  violation  thereof,  no  recovery  can  be  had  of  the 


MASTER  AND  SERVANT — NEGLIGENCE  OF  MASTER.  1841 

company  therefor,  if  such  violation  was  the  cause  of,  or  materi- 
ally contributed  to,  the  injury."1 

i  Wolsey  v.  Railroad  Co.,  33  0.  S.  227.  It  is  the  duty  of  a  railroad 
company  to  make  regulations  for  protection  of  employees  from 
dangers.  Railway  Co.  v.  Lavalley,  36  O.  S.  221.  This  duty  is 
satisfied  by  a  reasonable  provision  for  a  particular  case  instead  of 
a  rule.  Railway  v.  Zepperlein,  1  O.  C.  C.  36.  The  statute  require.-, 
rules  to  be  made  and  published.     R.  S.,  sec.  3334. 


Sec.  2042.     Liability  of  railroad  company  for  violation  of  rules 
by  employee. 

"The  company  is  not  liable  for  an  injury  which  happens  to 
an  employee  in  consequence  of  a  disregard  of  its  plain  instruc- 
tions, even  though  other  employees  also  disregard  the  same. 

"  If  a  railroad  company  in  the  exercise  of  its  discretion  adopts 
a  rule  for  the  conduct  of  its  employees  while  engaged  in  its 
service,  and  intended  for  their  personal  protection  against  in- 
jury, and  an  employee,  knowing  the  rule,  neglects  to  avail  him- 
self of  its  provisions,  and  in  consequence  of  such  neglect  sustains 
an  injury,  the  company  can  not  be  held  liable  therefor."1 

i  From  Wolsey  v.  Railroad  Co.,  33  0.  R.  227. 

An   employee  has  no  right  of  action  against  the  company   for  an   injury 

incurred    while    breaking    a    rule    of    the    company.     Pilkington    v. 

R.  R.  Co.,  70  Tex.  226,  83  Ky.  589;  Wood  on  Railroads,  sec.  382. 

Sec.  2043.     Measure  of  damages. 

The  measure  of  plaintiff's  damages  is  compensation  for  the 
actual  injury  received  by  him.  You  can  not  allow  anything 
for  the  purpose  of  punishment,  or  by  way  of  example.  The 
measure  of  plaintiff's  damages,  in  case  he  is  entitled  to  recover, 
is  compensation — what  will  fairly  and  reasonably  compensate 
him  for  the  injury,  nothing  more,  nothing  less.  In  determining 
the  amount  of  compensation,  yon  will  consider  the  pain  which 
the  plaintiff  has  suffered,  physical  or  mental ;  the  nature,  extent, 
and  character  of  the  injury:  the  effed  of  the  injury  upon  his 
capacity  to  labor  and  earn  a  living,  and  all  the  circumstances. 


1842  INSTRUCTIONS  TO  JURY. 

Sec.  2044.     Injury  to  child  of  employee. 

"Although  the  defendant  varied  from  the  usual  manner  of 
using  the  track  in  question,  yet  if  the  plaintiff  was  not  there  as 
an  employee  of  the  company,  but  was  there  wrongfully,  he  can 
not  complain  of  the  negligence  of  the  company  unless  the  de- 
fendant's agents  knew  that  he  was  there,  and  wilfully  injured 
him."1 

"If  you  find  that  the  defendant  company  and  another  com- 
pany were  each  rightfully  in  the  joint  use  and  occupation  of 

■* 
the  transfer  track,  and  the  father  of  the  plaintiff,  then  in  the 

employment  of  the  other  company,  duly  authorized,  was  en- 
gaged in  repairing  a  car  upon  this  track;  that  .the  plaintiff 
brought  to  him  his  dinner,  and  that  while  engaged  in  repairing 
said  car,  shortly  thereafter,  the  father  requested  the  plaintiff 
child  to  render  him  necessary  temporary  assistance  to  enable 
him  (the  father)  to  perform  the  work  of  repairing  the  car,  if 
he  was  thus  authorized  to  employ  the  plaintiff,  then  the  plaintiff 
was  rightfully  upon  the  track."2 

i  From  Penna.  Co.  v.  Gallagher,  40  O.  S.  637. 
-  From  Penna.  Co.  v.  Gallagher,  40  O.  S.  637. 

Sec.  2045.  Joint  occupancy  of  sidetrack  by  two  companies — 
Relation  of  servants  of  one  company  to  the 
other — Injury  to  servant  by  failure  to  in- 
spect track. 

Where  a  sidetrack  or  transfer  switch  is  in  the  joint  occu- 
pancy of  two  railroad  companies,  the  servants  of  each  company 
are  not  the  servants  of  each  other,  nor  fellow-servants  with  the 
servants  of  the  other,  but  their  right  of  recovery  in  case  of  injury 
caused  by  the  negligence  upon  the  part  of  the  other  company, 
in  operating  said  track  or  switch,  or  in  the  carelessness  of  its 
servants,  is  an  independent  one.  In  this  class  of  cases  the 
injured  person  is  more  than  a  mere  licensee.  The  relation  be- 
tween the  railway  whom  he  serves  and  the  other  railway  is  so 
far  founded  on  a  valuable  consideration  that  it  raises  upon  the 


MASTER  AND  SERVANT NEGLIGENCE  OF   MASTER.  1843 

part  of  that  other  railway  an  implied  obligation  that  it  will  not 
be  negligent  as  against  that  servant. 

Though  the  company's  cars  stood  on  the  defendant's 

transfer  switch,  through  the  trespass  of  said  company,  it  would 
not  absolve  the  defendant  from  the  exercise  of  ordinary  care 
in  the  proper  inspection  of  the  same  as  to  such  obstructions, 
and  in  so  using  said  switch  and  handling  said  cars  as  not  to 

injure  the  servants  or  property  of  said  company  on  its 

own  railroad  and  premises.  If  you  find  by  a  preponderance 
of  evidence  that  the  transfer  track  or  switch  was  in  the  joint 
occupancy  of  the  two  railroad  companies,  and  the  plaintiff's 
injury  was  caused  by  the  negligence  on  defendant's  part  in 
not  properly  inspecting  the  said  track  to  avoid  obstructions 
thereon,  and  in  handling  cars  found  standing  thereon,  whereby 
the  collision  and  injury  occurred,  your  verdict  should  be  for 
plaintiff,  otherwise  for  defendant.1 

i  Michael  Bulgar  v.  N.  Y.  L.  E.  &  W.  K.  R.,  supreme  court,  unreported. 
Judgment  of  circuit  court  reversed  and  common  pleas  affirmed,  28 
W.  L.  B.   128. 

Sec.  2046.     Relation  of  servant  and  agency  may  be  inferred 
from  facts  and  circumstances. 

The  jury  is  instructed  that  the  fact  of  agency  as  well  as  the 
powers  of  an  agent,  may  be  established  by  inference  from  facts 
and  circumstances  which  may  be  proved  by  the  evidence.  It 
is  not  essential,  nor  it  is  always  possible  to  prove  an  express 
contract  of  an  employment  in  order  to  establish  the  relation  of 
master  and  servant,  but  such  relation  may  be  inferred  or  implied 
from  other  facts  and  circumstances  directly  established  by  the 
evidence. 

If  it  may  be  inferred  from  such  facts  and  circumstances  11t.il 
the  person  who  commits  the  injury  complained  of.  was,  at  Ihe 
time  of  the  commission  of  the  alleged  wrong,  engaged  in  the 
actual  conduct  of  the  business  of  the  person  charged  [the  de- 
fendant], and  with  his  [the  defendant's]  Beeming  or  implied 
consent,  then  under  such  circumstances  the  latter   [the  defend- 


1844  INSTRUCTIONS  TO  JURY. 

ant]  may  be  held  responsible  for  the  wrong  of  the  person  directly 
committing  the  same,  who  may  be  held  under  such  circumstances 
to  be  the  agent  or  servant  of  the  defendant,  if  such  wrong  was 
committed  within  the  scope  of  the  apparent  scope  of  agency  or 
employment.1 

So,  therefore,  if  the  jury  find  from  the  facts  and  circum- 
stances, etc. 

3  Thompson  on  Negligence,  (2d  Ed.),  sec.  580;  Diehl  v.  Roberts,  134  Cal. 
164;  Perlstein  v.  Express  Co.,  177  Mass.  530;  Gershel  v.  Express 
Co.,  113  N.  Y.  Supp.  919. 


CHAPTER   CXIX. 
MOB— LIABILITY   OF   COUNTY  FOR   INJURY   BY. 

SEC.  SEC. 

2047.     Liability    of    county    for    in-  2.  The   statute   and  essential 

jury     from     mob     under  elements  to   recovery, 

statute.  3.  Essential    that   assault   be 

I.  Statement  of  claims.  made  by  mob. 

4.  Amount  of  recovery. 

Sec.  2047.    Liability  of  county  for  injury  from  mob  under 
statute. 

1.  Statement  of  claims. 

2.  The  statute  and  essential  elements  to  recovery. 

3.  Essential  that  assault  be  made  by  mob. 

4.  Amount  of  recovery. 

1.  Statement    of  claims   and   essential   elements   to   recovery. 

He  also  alleges  that  on  the of ,  he  was  a  chauffeur 

in  the  employ  of  The  Columbus  Taxicab  and  Auto  Livery,  and 

was  driving  an  automobile  near  street  in  said  city  of 

Columbus,  Ohio ;  that,  on  that  date,  while  he  was  in  the  peaceful 
pursuit  of  his  occupation  and  employment,  disturbing  nobody, 
driving  his  automobile  as  stated,  a  collection  of  individuals,  who 
had  assembled  there  for  an  unlawful  purpose,  intending  to  do 
damage  and  injury  to  the  plaintiff  and  others,  and  who  pre- 
tended to  exercise  correctional  power  by  violence  over  the  plain- 
tiff and  others,  without  any  authority  of  law,  and  contrary  to 
law,  assaulted  and  committed  an  act  of  violence  on  the  plaintiff 
by  striking  him  in  the  right  leg  and  ankle  with  a  large  stone, 
whereby  plaintiff  was  seriously  injured  and  handicapped  for 
manual  labor  and  for  earning  a  livelihood  for  a  long  time. 

Plaintiff  alleges  that  he  suffered  a  lynching  at  the  hands  of 
such  mob,  thus  unlawfully  assembled  for  the  unlawful  purpose 
aforesaid. 

1845 


1846  INSTRUCTIONS  TO  JURY. 

Plaintiff  further  alleges  that  he  was  not  furnished  with  such 
protection  as  he  was  entitled  to  by  law,  whereby  he  suffered  the 
aforesaid  lynching  at  the  hands  of  the  mob,  as  above  set  forth, 
by  reason  of  all  of  which  the  plaintiff  asks  judgment  against 
the  board  of  commissioners  in  the  sum  of  five  hundred  dollars, 
for  which  sum  he  claims  the  board  is  liable. 

It  is,  in  effect,  a  suit  against  the  county,  and  the  board  of 
county  commissioners  are  the  representatives  of  the  county. 

2.  The  statute.  The  statutes  of  this  state  declare,  in  sub- 
stance, that  any  collection  of  individuals  assembled  for  any 
unlawful  purpose,  intending  to  do  damage  or  injury  to  anyone, 
or  pretending  to  exercise  correctional  power  over  other  persons 
by  violence  and  without  authority  of  law,  shall,  for  the  purposes 
of  the  act,  be  regarded  as  a  mob ;  and  the  act  also  provides  that 
any  act  of  violence  exercised  by  them  upon  the  body  of  any 
person  shall  constitute  a  lynching.  Thus  we  have  a  definition, 
a  statutory  definition  of  a  mob  and  of  a  lynching,  to  control  the 
issue  in  this  case. 

The  statutes  further  declare  that  any  person  assaulted  by  a 
mob  and  suffering  a  lynching  at  their  hands  shall  be  entitled 
to  recover  from  the  county,  from  the  county  in  which  the  assault 
is  made,  any  sum  not  to  exceed  five  hundred  dollars. 

The  suit  in  question  is  planted  under  these  statutes. 

The  court  instructs  you  that,  before  the  plaintiff  is  entitled 
to  recover  a  verdict,  there  are  certain  material  allegations  which 
must  be  established  by  the  preponderance  of  the  evidence. 

First,  that  the  plaintiff  was  assaulted  by  a-  mob,  defining  a 
mob,  as  I  have  heretofore  defined  it  to  you  by  reading  the  statute, 
or  its  substance;  as  already  stated,  that  the  plaintiff  was  as- 
saulted by  a  mob,  that  is,  by  a  collection  of  individuals  assembled 
for  an  unlawful  purpose,  intending  to  do  damage  or  injury  to 
any  one,  or  pretending  to  exercise  correctional  power  over  other 
persons  by  violence,  and  without  authority  of  law.  That  is  the 
statutory  definition  of  a  mob.  Second,  that  the  plaintiff  suf- 
fered a  lynching  at  the  hands  of  such  mob;  that  is,  that  the 
mob  exercised  some  act  of  violence  upon  the  body  of  the  plain- 


MOB — LIABILITY    OF    COUNTY    FOR    INJURY.  1847 

tiff,  and  as  I  have  heretofore  said  to  you,  a  lynching  consists 
in  an  act  of  violence  exercised  by  a  mob  upon  the  body  of  any 
person  whatever.  Third,  that  the  alleged  assault  and  lynching 
at  the  hands  of  said  mob  occurred  in  this  county,  about  the  time 
alleged  in  the  petition.  The  exact  time  is  not  important.  If 
these  three  essential  elements  are  proved  by  a  preponderance  of 
the  evidence,  the  plaintiff  is  entitled  to  a  verdict;  but  if  the 
plaintiff  has  failed  to  so  prove  any  one  or  more  of  said  elements, 
he  is  not  entitled  to  a  verdict,  and  the  verdict  should  be  for 
the  defendants. 

3.  Essential  that  assault  be  made  by  mob — Mob  defined.  The 
court  further  instructs  you  that,  while  it  is  essential  that  the 
alleged  assault,  if  it  occurred,  be  made  by  a  mob,  yet,  if  there 
was  a  collection  of  individuals  assembled  at  or  near  the  corner 
of  T.  street  and  L.  avenue  for  the  unlawful  purpose  and  inten- 
tion of  damaging  or  injuring  anyone,  or  of  exercising  correc- 
tional power  over  others,  by  violence  and  without  authority  of 
law,  and  if,  in  furtherance  of  the  unlawful  purpose  on  the  part 
of  such  mob,  any  one  of  said  mob  actually  made  the  assault  upoa 
the  plaintiff,  it  is  a  sufficient  assault  by  the  mob.  In  like  man- 
ner, if  a  mob  assembled  at  or  near  the  corner  of  T.  street  and 
L.  avenue,  as  alleged,  with  the  unlawful  purpose  and  intent 
of  exercising  acts  of  violence  upon  the  body  of  any  person,  and 
one  of  their  number  at  the  time  and  place  of  the  assemblage, 
in  furtherance  of  their  common  design,  exercised  acts  of  vio- 
lence on  the  body  of  the  plaintiff,  by  striking  him  on  the  leg, 
as  alleged,  it  constitutes  a  lynching  by  such  mob. 

The  court  further  instructs  you  that,  to  constitute  a  mob,  it, 
is  essential  to  prove  that  the  collection  of  individuals  was  as- 
sembled for  an  unlawful  purpose,  as  heretofore  stated,  or,  being 
assembled  for  a  lawful  purpose,  while  so  assembled,  determined 
among  themselves  to  do  some  unlawful  acts. 

Now,  purpose  or  intent  is  an  operation  of  the  mind  and  is 
not  usually  proved  by  direct  or  positive  evidence.  Persons  do 
not.  usually  declare  that  they  have  assembled  or  gathered  to- 
gether for  unlawful  purposes,  so  that  intent  and  purpose  are 


1848  INSTRUCTIONS  TO  JURY. 

usually  proved  by  indirect  or  circumstantial  evidence.  You 
will,  therefore,  in  determining  whether  the  assemblage  was  gath- 
ered for  an  unlawful  purpose,  or,  after  being  gathered,  deter- 
mined to  do  an  unlawful  act,  perform  some  unlawful  act,  con- 
sider the  acts  and  conduct  and  declarations  of  the  persons  whose 
intent  is  sought  to  be  proved,  as  reflecting  upon  the  purpose 
and  intent  of  the  persons  collected  together,  if  there  were  such 
persons,  together  with  all  the  other  facts  and  circumstances 
surrounding  them  prior  to  and  at  the  time  of  and  subsequent 
to  the  alleged  assault,  if  it  occurred,  and  determine  whether 
the  collection  of  individuals,  if  assembled  as  alleged,  were  present 
with  an  unlawful  purpose  or  intent  either  to  damage  or  injure 
anyone,  or  to  exercise  correctional  power  over  others,  with  vio- 
lence and  without  lawful  authority. 

If  the  plaintiff  was  struck  by  a  stone,  as  alleged,  and  you 
should  conclude  that  the  person  who  struck  him  was  not  a 
member  of  a  mob,  as  I  have  heretofore  defined  it  to  you,  but 
acted  independently  of  a  mob,  then  the  plaintiff  can  not  recover 
in  this  case,  for  the  plaintiff  recovers,  under  the  statute,  if  at 
all,  for  mob  violence  upon  him,  some  one  of  the  mob  who  may 
have  attacked  him  or  assaulted  him  with  a  stone  or  other  weapon, 
as  the  case  might  be.  And  he  can  not  recover  if  it  was  some 
independent  act  of  some  person  who  was  not  acting  in  conjunc- 
tion with  some  mob. 

Gentlemen,  the  court  further  instructs  you  that,  if  there  was 
a  collection  of  persons  assembled  as  set  forth  in  the  petition, 
for  an  unlawful  purpose,  either  intending  to  damage  or  injure 
others  or  to  exercise  correctional  power  over  others  by  violence 
and  without  authority  of  law,  even  though  the  collection  of 
persons  did  not  specifically  intend  to  injure  this  plaintiff,  if 
such  a  collection  of  persons  did  injure  this  plaintiff,  the  defend- 
ant  is  liable,  if  the  mob  or  collection  of  persons  had  the  general 
intent  to  injure  persons  in  that  immediate  locality. 

4.  Amount  of  recovery.  As  heretofore  stated,  the  action  is 
to  recover  a  statutory  penalty  for  an  alleged  violation  of  certain 
statutory  provisions,  and  the  right  to  recover  is  based  solely 


MOB — LIABILITY    OF    COUNTY    FOR    INJURY.  1849 

upon  those  provisions,  the  penalty  varying  with  the  aggravation 
or  enormity  or  veniality  of  the  wrong,  rather  than  the  amount 
of  any  pecuniary  loss  which  the  plaintiff  may  have  sustained, 
although  the  idea  of  compensation  enters  into  the  law.  The 
court  instructs  you  with  regard  to  the  amount  of  your  finding, 
that  you  shall  assess  such  amount  as,  in  your  judgment,  under 
all  the  circumstances  in  the  case,  you  regard  as  just  and  right, 
and  as  you  believe  the  defendant  ought  to  pay,  not  exceeding, 
however,  in  any  event,  the  amount  claimed  in  the  petition, 
to-wit,  five  hundred  dollars.  This  matter  is  left  entirely  to  you, 
to  exercise  your  own  judgment  under  all  the  circumstances  of 
this  case.1 

i  Hoover  v.  Gibson,  et  al.,  Franklin  Co.  Com.  Pleas.     Rogers,  J. 


CHAPTER   CXX. 

MUNICIPAL  CORPORATIONS— STREETS— SIDEWALKS- 
CHANGE  OF  GRADES— SEWERS. 


SEC.  BJEU. 

2048.  Dedication    of    property    for 

public  street — Requisites 
of. 

2049.  Interest    of    abutting    owner       2059. 

in   street. 

2050.  Establishment    of    street    by 

general  use. 

2051.  Streets  may  be  improved  to       2060. 

meet  public  needs — 
Within  reasonable  dis- 
cretion   of    municipality.       20G1. 

2052.  Must     keep     sidewalks     and 

cross     walks     open     and 
reasonably     safe — Munic-       2062. 
ipality  not  an  insurer. 

2053.  Pedestrians   to   use   ordinary 

care  in  passing  along 
streets  —  May  assume 
city  discharged  its  duty.       2063. 

2054.  Defective    street    becomes    a 

nuisance,   when.  2064. 

2055.  When  city  liable  for  defects 

in  streets — Constructive 
notice. 

2056.  Sidewalk   in  defective  condi- 

tion for  such  length  of 
time  that  city  presumed 
to   know    it.  2065. 

2057.  Not  liable  for  mere  slipperi- 

ness  from  snow  or  ice — 
Otherwise  if  danger  from       2066. 
want   of    repair   was   en- 
hanced   by    snow    or    ice. 

2058.  Though    city    not    liable    for       2067. 

mere  slipperiness  from 
ice  or  snow — Otherwise 
if  snow  or  ice  allowed 
to  accumulate  so  as  to 
1850 


become  serious  and  no- 
ticeable obstruction  — 
Length   of  time   allowed. 

Liability  of  municipality  for 
injury  resulting  to  trav- 
eler upon  stone. — Duty 
of  traveler. 

City  to  keep  sidewalks  in 
reasonably  safe  condi- 
tion  for  travel. 

Injured  party  to  show  ac- 
tual or  constructive  no- 
tice  to  city. 

Streets  and  sidewalks  to  be 
kept  in  reasonable  re- 
pair and  free  from  nuis- 
ance— Must  show  actual 
or  constructive  notice. 

Latent  defect — Actual  notice 
to  be  shown. 

Sewer  system  — ■  Reasonable 
care  required  in  con- 
struction, maintenance 
and  supervision  —  Pro- 
viding safeguards  to  pre- 
vent backwater  from 
sewer. 

Injury  from  change  of  grade 
— Purpose  of  a  view  of 
premises. 

Change  of  grade  within  au- 
thority, and  without 
negligence. 

Change  of  grade — Improve- 
ments made  with  refer- 
ence to  established  grade 
— Liability  for  injury 
from  change  of  grade. 


MUNICIPAL   CORPORATIONS — STREETS — SIDEWALKS. 


1851 


SEC.  SEC. 

2068.  Change  of  grade — Statute  as       2077. 

to  —  Requirements       o  f 
owner   as  to  claims 

2069.  Change    of    grade— Require-       2078. 

merits  as  to  files  and 
surveys — Reliance  upon  2079. 
by  abutting  owner  — 
Failure  to  file  claim — 
Skill  required  of  owner  2080. 
— Reliance  upon  infor- 
mation furnished  by  en- 
gineer. 

2070.  Change  of  grade — Plans  and 

profiles  —  Owner  may 
rely  upon  information 
and  explanations  by  en- 
gineer. 

2071.  Change    of    grade — Adopting 

county  roads  as  street. 
2071a.  Change  of  grade — Improve- 
ment made  before  grade 
established  is  at  one's 
own    peril. 

2072.  Change  of  grade — Rule  as  to 

unreasonable   grade. 

2073.  Change    of    grade — Whether 

or  not  premises  abut  up- 
on improvements  as  af- 
fecting   claim    for    dam-       2086. 


2074.  Reasonableness    of    grade   of 

street — What  should  be 
considered  in  determin- 
ing. 

2075.  Change    of    grade — Recovery 

of  interest  on  damage. 

2076.  Change  of  grade — Retaining 

wall — Whether  necessary 
to  protect  buildings. 


2081. 
2082. 
2083. 
2084. 
2085. 


Streets — Change    of   grade — 
Damages  —  A      different 
form. 
Change    of    grade    after    im- 
provement— How  proved. 

Whether  improvement  made 
in  conformity  to  estab- 
lished grade. 

Change  of  grade — Damages 
recoverable  —  Injury  to 
building  —  Shrubbery  — 
Access  to  premises  — 
Value  before  and  after 
change. 

Damages — Market  value — 
Opinion   evidence. 

Damages  — ■  Enhancement  of 
value. 

Change  of  grade — Damages 
— Benefits — Access. 

Damages  to  property  owner 
by  construction  of  street. 

Excavation  in  street — Negli- 
gence in  making — Sig- 
nals or  lights — Right  of 
travtel  subject  to  tem- 
porary obstructions  or 
excavations. 

Obstruction  of  sidewalk 
when  building. 

1.  City   must   permit   reason- 

able part  to  be  used. 

2.  Right  and  duty  of  traveler 

to  use  sidewalk. 

3.  City    not    liable    unless    it 

had  notice  or  knowledge. 


Ses.  2048.     Dedication  of  property  for  public  street— Requi- 
sites  of. 
"Three  things  are  necessary  to  he  shown  to  establish  its  dedi- 
cation.    The  owner  must  have  intended  to  dedicate  the  property 


1852  INSTRUCTIONS  TO  JURY. 

for  a  street,  and  to  give  up  his  private  rights  in  it,  which  are 
inconsistent  with  its  use  as  a  street  by  the  public  at  large.  And 
he  must  have  evidenced  and  carried  out  this  intention  by  some 
unequivocal  act,  such  as  throwing  it  open  to  the  public,  fencing 
it  out,  making  or  recording  a  plat  showing  it  marked  as  a  street, 
selling  lots  upon  such  plat,  and  conveying  them  by  deeds  refer- 
ring to  the  plat.  If  you  find  that  the  owner  so  intended  to 
dedicate  it  as  a  public  street,  and  carried  out  such  intention  by 
acts  necessary  for  that  purpose,  then  the  village  council  must 
have  accepted  the  dedication,  there  being  no  evidence  of  any 
acceptance  by  the  public  before  the  incorporation  of  the  village ; 
and  the  passage  of  an  ordinance  recognizing  the  street  and 
providing  for  its  occupancy  and  improvement  by  the  corpora- 
tion is  a  sufficient  acceptance  of  the  dedication  of  the  street  by 
the  village  council,  if  before  that  time  the  owner,  on  his  part, 
had  done  all  that  was  necessary  to  its  dedication,  as  before 
mentioned. '  '* 

iFrom  Railway  Co.  v.  Village  of  Carthage.  36  O.  S.  631.  Intention  to 
dedicate  express  or  implied,  and  acceptance  by  municipality  are 
essential.     Millikin  v.  Bowling  Green,  3  Oh.  Dec.  204    (CO.). 

Sec.  2049.    Interest  of  abutting  owner  in  street— Ingress  and 
Egress. 

If  the  lands  of  the  plaintiff,  mentioned  and  described,  abut 

upon  .  street,  he  has,  in  addition  to  the  general  interest 

which  the  public  has  in  the  street,  an  incidental  title  to  certain 
facilities,  easements,  and  franchises,  one  of  which  is  the  right 
of  ingress  and  egress  to  his  lot,  which  is  as  much  property  as 

the  lot  itself,  and  if  you  find  that  his  lands  abut  upon  

street,  and  that  this  right  or  easement  has  been  substantially 
impaired  by  the  defendant  in  the  location  and  operation  of  its 
railroad  along  the  street,  if  you  find  it  has  so  done,  and  that  by 
the  location  of  the  railroad  track  by  the  defendant  in  the  street 
in  front  of  his  premises,  that  he  has  sustained  special  damage 
by  having  the  ingress  and  egress  to  his  lot  substantially  impaired, 
you  may  and  should  take  this  into  consideration  in  determining 
the  amount  to  which  he  would  be  entitled.1 


MUNICIPAL    CORPORATIONS STREETS SIDEWALKS.  1853 

i  From  Railroad  Co.  t?.  Stubbings,  supreme  court,  unreported,  No.  2467. 
The  interest  of  an  abutting  owner  is  a  property  right  in  the 
nature  of  an  incorporeal  hereditament,  protected  as  property  by 
the  constitution.  Crawford  v.  Delaware,  7  O.  S.  4.">9;  Street  Ry. 
f.  Cumminsville,  14  0.  S.  523.  An  abutter's  right  of  access  is 
property.  McNulta  v.  Ralston,  5  0.  C.  C.  330.  "An  abutting 
property  owner  on  a  public  street  of  a  municipality  has  a  right 
and  interest  in  the  street,  in  the  nature  of  an  easement,  ap- 
purtenant to  his  lot,  and  as  much  his  private  property  as  the 
abutting  lot  itself."  Pratt,  J.,  in  Toledo  Bending  Co.  v.  Mfg., 
etc.,  Co.,  3  Oh.  Dec.  430. 

Sec.  2050.     Establishment  of  street  by  general  use,  or  prescrip- 
tion. 

In  determining  the  lines  and  location  of  street,  ad- 
joining the  property  of  plaintiff,  it  is  not  necessary  that  legal 
proceedings  should  be  shown  to  have  been  had  to  establish  tbis 
street,  but  if  you  find  from  the  testimony  that  the  same  had 

been  in  general  use  as  a  street  in  the  city  of for  a  public 

road  for  a  period  of  twenty-one  years  prior  to  the  time  tbe  same 
was  occupied  and  used  by  the  defendant,  as  claimed  in  the  peti- 
tion, if  you  find  it  was  so  used  and  occupied  by  the  defendant, 
this  would  constitute  in  law  an  establishing  of  the  same  as  a 
public  street,  and  would  entitle  the  plaintiff  to  all  tbe  rights 
and  the  same  rights  therein  as  though  the  same  had  been  regu- 
larly laid  out  and  established  by  the  proper  authorities.  And 
in  determining  the  location  of  street,  you  should  con- 
sider only  the  evidence  relating  to  the  use  tbereof  by  the  public, 
so  far  and  to  such  an  extent  that  it  is  proven  that  the  same  was 
actually  and  necessarily  used  and  traveled  by  the  public,  and 
the  fact  that  the  public  travel  was  diverted  to  the  water  of  the 
canal  for  the  mere  purpose  and  convenience  as  a  watering  place 
for  stock  would  not  necessarily  establish  the  laying  out  of  the 
street  upon  that  portion  of  the  traveled  track  that  was  so  used 
and  only  so  used.1 

i  From  Railroad  Co.  v.  Rtubbings,  supreme  court,  unreported,  No.  2467. 


1854  INSTRUCTIONS  TO  JURY. 

Sec.  2051.     Streets  may  be  improved  to  meet  public  needs — 
Within  reasonable  discretion  of  municipality. 

Streets  are  essentially  permanent  physical  conditions  of  city 
existence,  and,  when  appropriated  to  the  public  as  part  of  a 
street  system,  imply  that  as  fast  as  the  needs  of  the  public 
require  they  will  be  improved  in  a  manner  adequate  to  reason- 
ably meet  the  public  requirements ;  but  it  would  be  unwise  and 
frequently  very  oppressive  to  make  such  improvements  faster 
than  the  ability  of  the  abutting  owners  would  make  practical, 
and  this  is  especially  true  as  the  more  expensive  permanent 
street  improvements  are  paid  for  largely  by  local  assessments. 
The  fact  that  the  municipality  reasonably  delays  making  or 
authorizing  the  expensive  improvements  is  not  to  be  treated  as 
a  waiver  on  its  part  of  its  right  or  intention  to  properly  improve 
the  street  when  it  becomes,  in  its  discretion,  reasonably  proper 
so  to  do,  and  as  the  needs  of  the  public  require;  and  what  is 
reasonable  is  wholly  within  the  discretion  of  the  municipal  au- 
thorities, so  long  as  such  discretion  is  reasonably  exercised  under 
the  circumstances  of  the  given  case  and  within  the  provisions 
of  the  statute.1 

i  Voris,  J.,  in  Sanford  v.  The  City  of  Akron,  Summit  Co.  Com.  Pleas. 
Affirmed  by  circuit  court,  April  term,  1896.  A  citizen  can  not  con- 
trol the  method  of  improvement.  Parsons  v.  Columbus,  50  O.  S. 
460. 

Sec.  2052.     Must  keep  sidewalks   and   cross-walks   open  and 
reasonably  safe — Municipality  not  an  insurer. 

The  law  requires  that  the  city  of  ,  being  a  municipal 

corporation,  shall  have  the  care,  supervision  and  control  of  the 
streets,  and  shall  cause  them  to  be  kept  open  and  in  repair,  and 
free  from  nuisance.  This  obligation  includes,  of  course,  as  a 
part  of  the  streets,  the  sidewalks  an*d  crosswalks,  and,  therefore, 
imposes  upon  the  city  the  duty  of  keeping  the  sidewalks  and 
crosswalks  open  and  in  repair,  and  in  a  reasonably  safe  and 
suitable  condition  for  pedestrians  passing  along  the  same.  This 
requires  a  reasonable  vigilance  in  view  of  all  the  surroundings, 


MUNICIPAL   CORPORATIONS STREETS SIDEWALKS.  1855 

and  does  not  exact  or  require  that  which  is  impracticable.  When 
the  municipal  authorities  have  done  that  which  is  reasonable 
in  this  regard,  they  have  discharged  the  entire  obligation  im- 
posed by  the  law.  It  is  to  be  said  also  that  the  city  is  not  bound 
at  all  hazards  to  have  knowledge  of  defects  in  sidewalks.  The 
city  is  not  an  insurer  of  the  safety  of  its  public  ways  and  side- 
walks-, or  of  the  lives  and  limbs  of  persons  passing  over  and 
along  them.  It  is  the  duty  of  the  city  to  exercise  ordinary  care 
and  prudence  in  the  taking  care  of  its  streets,  and  this  includes 
sidewalks;  and  by  ordinary  care  I  mean  that  degree  of  care 
which  persons,  which  individuals  of  ordinary  prudence,  are 
accustomed  to  use  and  employ  under  the  same  or  similar  cir- 
cumstances, in  order  to  conduct  the  enterprise  in  which  they  are 
engaged  to  a  safe  and  successful  termination,  having  due  regard 
for  the  rights  of  others,  and  for  the  objects  to  be  accomplished. 
In  general  terms,  then,  such  is  the  duty  of  the  city  in  the  care, 
supervision,  control  and  maintenance  of  streets.1 

i  Carlos  M.  Stone,  J.,  in  City  of  Cleveland  v.  Storer,  S.  C.  4422.  See 
Cooley  on  Torts,  746  (625).  A  street  includes  sidewalks.  Dillon's 
Municipal  Corporations,  sec.  780,  n.  The  city  is  bound  to  see  that 
the  sidewalk  conforms  to  the  grade  of  the  street.  Toledo  v. 
Higgins,  5  Oh.  Dec.  485. 

"A  municipal  corporation  is  charged  with  the  duty  of  keeping  its  streets 
free  from  nuisance  and  in  a  reasonably  safe  condition  for  travel 
in  the  usual  mode,  but  it  is  not  an  insurer  of  the  safety  of  persons 
using  them,  and  when  they  are  in  that  condition  it  is  not  charge- 
able with  negligence,  although  an  accident  happens  in  the  use  of 
the  streets."  City  of  Dayton  v.  Glaser,  70  O.  S.  471.  The  fact 
that  a  portion  of  a  plank  sidewalk  had  been  in  bad  condition,  due 
to  the  sliding  of  an  adjacent  hillside  of  which  the  municipality 
had  notice,  does  not  as  matter  of  law  amount  to  notice  of  the 
defect  causing  the  injury.  Scrogin  v.  City,  10  C.  C.  (N.S.)  293. 
Affirmed,  87  O.  S.  495. 

Sec.  2053.     Pedestrians  to  use  ordinary  care  in  passing  along 
streets — May  assume  city  discharged  its  duty. 

On  the  other  hand,  it  was  the  duly  of  the  plaintiff  as  a  pedes- 
trian upon  the  street  to  exercise  ordinary  care  in  passing  along 
the  street  and  over  this  crossing — over  the  crosswalk — and  the 


1856  INSTRUCTIONS  TO  JURY. 

same  rule  as  to  ordinary  care  in  this  instance  means  precisely 
what  it  means  in  the  other.  He  is  to  exercise  that  degree  of 
care  that  men  of  ordinary  prudence  are  accustomed  to  use  and 
employ.  It  was  then  his  right  to  go  along  the  street  in  reliance 
that  the  city  had  properly  discharged  its  duty ;  he  had  a  right 
to  pass  along  the  street  in  the  belief  that  the  city  had  performed 
its  duty,  and  that  its  sidewalk  was  in  a  reasonable  and  suitable 
condition  for  him  to  pass  over.  That  reasonable  diligence  on 
the  part  of  the  passerby  along  the  sidewalk  doesn't  require  that 
he  shall  be  on  the  alert  every  moment  searching  for  a  defect 
here  or  there.  It  doesn't  mean  that  at  all;  nor  does  it  mean 
that  he  may  shut  his  eyes  and  take  his  chances  on  any  possible 
condition  of  things.  It  is  not  that.  It  is  relying  upon  the 
city's  keeping  its  streets  in  a  reasonably  fair  condition.  He 
may  walk  along  relying  upon  that  condition  of  things,  that  sup- 
posed condition  of  things;  he  may  proceed  upon  the  theory 
that  the  sidewalk  is  in  a  reasonably  safe  condition,  using  that 
care  and  that  discretion  that  prudent  men  are  accustomed  to 
use  in  passing  along  a  highway.1 

i  Carlos  M.  Stone,  in  City  of  Cleveland  v.  Storer,  S.  C.  4422.  Police 
power  of  city  as  to  cross  streets  and  crossings.  Dillon's  Municipal 
Corporations,  sec.  393. 

Sec.  2054.     Defective  street  becomes  a  nuisance,  when. 

Now,  the  word  "nuisance"  in  this  provision  of  our  statute 
may  be  defined  in  these  words :  A  nuisance  is  something  done 
or  omitted  to  be  done  which  has  the  effect  of  prejudicially  and 
unwarrantably  affecting  the  rights  of  another  person,  and  works 
a  damage  or  injury  to  such  other  person.  If  this  sidewalk  had 
become  out  of  repair,  was  defective  in  the  particulars  claimed, 
if  it  had  become  dangerous,  unsafe  to  cross  over,  maintained 
there  by  the  city  with  knowledge  of  its  defects  and  dangerous 
character,  then  that  was  the  maintaining  of  a  nuisance  within 
the  meaning  of  the  law,  and  if  a  person  was  injured  without 


MUNICIPAL   CORPORATIONS STREETS SIDEWALKS.  1857 

fault  on  his  part,  under  such  circumstances,  he  would  have  a 
right  of  action  predicated  upon  the  nuisance  so  maintained.1 

i  Carlos  M.  Stone,  J.,  in  City  of  Cleveland  v.  Storer,  S.  C.  4422.  See 
different  form,  No.  567,  post.  What  are  nuisances  and  power  and 
duty  of  city  to  abate.  Dillon's  Municipal  Corporations,  sec.  374 
and  n. 

Sec.  2055.     When  city  liable  for  defects  in  streets — Construc- 
tive notice. 

If  you  find  the  city  had  actual  notice  of  this  defect,  or  if  such 

defect  had  existed  for  such  a  period  of  time  as  that  the  city,  in 

the  exercise  of  reasonable  care,  ought  to  have  known  it,  the  rule 

to  be  applied  is  as  follows :    If  there  occurs  a  defect  in  a  street 

upon  such  short  notice  or  under  such  circumstances  as  that  the 

city  had  no  knowledge  of  it,  and  in  the  exercise  of  ordinary 

care   could  not  know  it — could  not  be   expected  to  know  it — 

then  no  liability  arises  against'  the   city   for  that   reason.     So, 

it  is  requisite  as  one  of  the  things  to  be  established,  either  that 

the  city  had  actual  notice  of  the  defect,  or  that  it  had  existed 

for  such  a  length  of  time  and  under  such  circumstances  and 

surroundings  as,  in  the  exercise  of  ordinary  care,  it  must  be 

held  to  have  known  it,  ought  to  have  known  it,  because  if  was 

bound  to  have  known  it  by  reason  of  its  long  existence.     Notice 

to  an  officer  of  the  city,  charged  with  the  duty  of  looking  after 

these  things  is  notice  to  the  city.     The  city  acts  through  its 

properly  constituted  officers  and  agents.     Some  have  charge  of 

one  department  of  the  city  government,  and  some  have  charge 

of  others,  and  so  I  say,  notice  to  a  duly  appointed  officer,  whose 

duty  it  is  to  look  after  sidewalks  and  crosswalks,  whose  duty  it 

is  to  see  that  they  are  kept  in  repair,  notice  to  such  an  officer  is 

notice  to  the  city.     And  so  it  is  notice  to  the  municipality  where 

the  defective  condition  has  existed  for  such  a  period  of  time  as 

that,  in  the  exercise  of  ordinary  care,  ought  to  have  known  it. 

That  is  what  is  known  as  constructive  notice.     It  is  constructive 

notice  as  distinguished  from  actual  notice.1 

i  Carlos  M.  Stone,  J.,  in  City  of  Cleveland  v.  Storer,  S.  C.  4422.  As  to 
what  is  notice  to  city  of  defect,  see  City  of  Lafayette  v.  Allen,  81 


1858  INSTRUCTIONS  TO  JUKY. 

Ind.  166.  If  a  city  fails  to  keep  its  streets  in  safe  condition  for 
public  use,  it  will  be  liable  for  any  injury  caused  thereby.  Dillon's 
Municipal  Corporations,  sec.  980. 

Sec.  2056.     Sidewalk  in  defective  condition  for  such  length  of 
time  that  city  presumed  to  know  it. 

You  will  first  consider  whether  the  sidewalk  was  out  of  repair 
and  in  such  a  condition  as  to  be  dangerous;  then  whether  the 
city  knew  it.  If  the  sidewalk  was  out  of  repair  and  in  a  dam- 
aged and  defective  condition,  and  had  been  for  a  sufficient  length 
of  time  so  that  the  city  might  be  presumed  to  know  of  it,  then 
the  city  had  notice.  It  is  not  necessary  to  show  positively  that- 
some  one  went  to  the  official  whose  duty  it  was  to  look  after 
these  streets  and  sidewalks  and  told  him  about  the  dangerous 
condition  of  these  sidewalks.  But  you  must  find,  if  you  find 
there  was  a  dangerous  sidewalk,  that  it  was  so  apparent  that 
it  might  be  observed  by  persons  passing  over  it  in  that  condi- 
tion, and  that  it  had  been  so  for  a  sufficient  length  of  time,  so 
that  it  is  fair  to  presume  that  the  city  and  its  officials  in  the 
course  of  their  duty,  in  its  care  of  the  streets,  should  have  known 
of  it  and  had  time  to  repair  it,  before  you  may  find  that  the  city 
had  notice.1 

i  Gorman,   J.,    in    City    of   Toledo    v.   Wilhelmena    Clopeck,    supreme   court, 
unreported.     Judgment  affirmed. 

Sec.  2057.     Not  liable  for  mere  slipperiness  from  snow  or  ice — 
Otherwise  if  danger  from  want  of  repair  was 
enhanced  by  snow  and  ice. 
The  city  is  not  liable  for  the  mere  slipperiness  of  the  sidewalk. 
If  this  crosswalk  was  in  a  reasonable  state  of  repair,  so  that  you 
are  able  to  say  that  the  city  was  without  fault  in  the  premises, 
then  there  was  no  negligence  on  the  part  of  the  city  in  main- 
taining this  crosswalk  or  plate  in  the  condition  that  it  was  in, 
and  this  accident  nevertheless  happened,  if  it  happened  because 
of  the  slippery  character  of  the  walk,  resulting  from  this  slight 
fall  of  snoAv  during  the  night  previous,  or  from  sleet,  or  an 
icy  condition  of  the  walk,  the  plaintiff  would  not  be  entitled  to 


MUNICIPAL   CORPORATIONS— STREETS— SIDEWALKS.  1859 

recover.  But  if  this  fall  was  due  to  the  fault  of  the  sidewalk- 
due  to  the  faulty  condition  of  it,  rather— if  the  city  was  negli- 
gent in  the  care  of  it,  if  it  had  permitted  it  to  become  out  of 
repair,  to  become  unsafe  and  dangerous,  and  this  fall  was  the 
result  of  that  condition,  and  the  plaintiff,  without  fault,  received 
this  fall  because  of  that  condition  of  things,  then  he  would  be 
entitled  to  recover,  we  think,  even  though  that  dangerous  con- 
dition was  enhanced  by  the  fact  that  snow  had  fallen  upon  it 
the  night  before.  In  other  words,  the  plaintiff  is  not  prevented 
from  recovering  in  this  action,  even  though  the  slippery  con- 
dition of  the  sidewalk  incidentally  caused  by  the  fall  of  the 
snow  added  to  the  condition  of  things  there,  made  it  more  dan- 
gerous. He  is  not  prevented  from  maintaining  his  action  if  the 
jury  find  from  the  testimony  in  this  case  that  the  fall  was  due 
to  the  defective  condition  of  the  sidewalk,  and  without  which 
defect  the  accident  would  not  have  happened,  and  if  you  further 
find,  as  I  have  already  indicated,  that  the  city  had  knowledge  of 
the  defective  character  of  the  sidewalk,  or  that  it  existed  for 
such  a  length  of  time  as,  in  the  exercise  of  ordinary  care,  ought 
to  have  known  it,  the  city  would  be  held  liable.1 

i  Carlos  M.  Stone,  J.,  in  City  of  Cleveland  v.  Storer,  S.  C.  4422.  As 
to  liability  for  mere  slipperiness,  see  Chase  v.  Cleveland.  44  0.  S. 
505;  Dillon  on  Municipal  Corporation,  sec.  1(10(5. 
The  court,  in  the  44th  0.  S.  514,  upon  this  subject  of  ice  and  snow, 
says:  "In  all  northern  cities  and  towns  storms  of  snow  and  sleet, 
producing  ice  and  resulting  in  slippery  walks,  are  of  frequent  and 
constant  recurrence  during  the  winter  season,  and  accidents  of 
the  character  complained  of  are  also  frequent.  Such  dangers  are 
apt  to  exist  in  many  places  at  the  same  time,  and  at  points  widely 
separated  from  one  another.  They  appear  at  many  points  today,  dis- 
appear tomorrow,  and  like  dangers  appear  at  other  places  the  next 
day.  They  are  affected  by  changes  of  weather,  which  are  likely 
to  occur  at  any  time,  and  frequently  many  times  within  a  few 
hours.  *  *  *  To  effectually  provide  against  dangers  from  this 
source  would  require  a  large  special  force  involving  enormous 
expense." 

A  city  is  not  liable  to  one  who  slipped  upon  an  icy  sidewalk.     Bretsh  v. 
Toledo,  1  N.  P.  210. 


1860  INSTRUCTIONS  TO  JURY. 

Sec.  2058.  Though  city  not  liable  for  mere  slipperiness  from 
ice  or  snow,  otherwise  if  snow  or  ice  allowed 
to  accumulate  so  as  to  become  serious  and 
noticeable  obstruction — Length  of  time  al- 
lowed. 
Now,  it  is  also  a  well-settled  rule  that  the  city  is  not  liable  for 
any  injury  which  is  caused  by  the  mere  slipperiness  of  its 
streets,  caused  by  ice  or  snow  upon  the  surface  of  the  street. 
This  is  a  situation  of  things  which  is  necessarily  incident  to 
winter  weather,  and  is  liable  to  occur  during  winter  at  any 
time  and  upon  any  street ;  and  that  is  a  condition  of  things 
that  the  public  and  persons  traveling  upon  the  street  know  and 
are  bound  to  know,  and  to  take  into  consideration ;  and  it 
would  be  an  unreasonable  burden  to  impose  upon  the  city  to 
see  that  its  streets  at  all  times  during  the  winter,  in  all  places, 
were  free  from  mere  slipperiness.  But  if  ice  or  snow  is  allowed 
to  accumulate  upon  the  street  to  such  an  extent  as  to  become  a 
serious  and  noticeable  obstruction  to  ordinary  travel  upon  the 
street,  and  the  city,  by  its  officers  or  agents,  acquired  notice  or 
knowledge  of  such  obstruction,  and  if,  after  such  knowledge  or 
notice,  it  is  practicable,  considering  the  means  at  its  command, 
considering  the  time  during  which  this  alleged  obstruction  ex- 
isted, and  considering  everything,  if  it  is  practicable  for  the 
city  to  remove  these  obstructions  after  such  knowledge  or  notice, 
then  it  would  be  liable  for  an  injury  caused  by  such  obstruction ; 
and  of  course,  in  determining  whether  it  is  practicable  or  not, 
the  jury  will  have  to  take  into  consideration  the  extent  of  such 
obstruction,  and  of  similar  obstructions  throughout  the  city, 
and  the  means  at  the  command  of  the  city,  and  all  the  circum- 
stances in  evidence. 

It  will  be  the  duty  of  the  jury  to  examine  the  evidence  in 
this  case  carefully,  and  determine  just  what  the  facts  are.  You 
will  inquire  whether  there  was  a  ridge  of  snow  or  ice  upon  the 
side  of  this  street  railroad  track,  and  whether  the  plaintiff's 
horse  slipped  on  that  ridge  of  ice  or  snow — whether  that  was 
the  cause  of  the  horse's  falling;   and  whether  that   ridge  of 


MUNICIPAL   CORPORATIONS STREET!? SIDEWALKS.  1861 

snow  or  ice,  if  it  existed,  was  of  such  a  character  and  of  such 
an  extent  as  to  he  an  obstruction  to  ordinary  travel  upon  the 
street.  Was  it  a  noticeable  obstruction?  Did  it  materially  in- 
terfere with  the  ordinary  travel  upon  the  street?  You  will 
ascertain,  if  you  find  that  such  an  obstruction  existed  as  I 
have  described,  whether  the  city  knew  of  it,  or  whether,  by 
the  exercise  of  ordinary  care  and  vigilance,  ought  to  have  known 
of  it.  You  may  consider  the  length  of  time  the  obstruction 
had  existed,  if  at  all,  in  substantially  the  same  condition  it  was 
in  at  the  time  of  the  accident. 

Of  course,  if  tins  ridge,  assuming  that  you  find  that,  such 
a  ridge  was  there,  if  it  was  substantially  caused  by  a  recent 
fall  of  snow  or  a  recent  change  in  the  state  of  the  weather- 
so  recent  that  it  could  not  reasonably  be  expected  that  the 
city  would  have  the  opportunity  or  the  means  or  the  ability 
to  remove  this  as  well  as  all  similar  obstructions  throughout 
its  corporate  limits— then  the  city  is  not  liable.  You  must  look 
at  all  these  matters  as  reasonable  men,  in  the  light  of  all  the 
circumstances,  applying  to  them  your  best  judgment  and  your 
experience.1 

i  Isaac  P.  Pugsley,  J.,  in  City  of  Toledo  v.  Wellenor,  supremo  court, 
No.  26.52.  Judgments  affirmed.  It  is  the  duty  of  a  city  to  use 
reasonable  diligence  in  keeping  its  streets  and  walks  free  of  snow 
and  ice.  Dillon's  Municipal  Corporations,  sec.  1006.  Failure  of 
the  city  to  look  after  removal  of  snow  and  ice  on  its  streets  and 
sidewalks  may  be  regarded  as  a  wrongful  act.  McKellar  v.  Detroit 
57  Mich.  158. 

Sec,  2059.  Liability  of  municipality  for  injury  resulting  to 
traveler  upon  stone  in  street — Duty  of  trav- 
eler. 

It  is  the  duty  of  the  defendant  corporation  to  use  reasonable 
care,  caution,  and  supervision  to  keep  its  streets  in  a  safe  condi- 
tion for  the  ordinary  modes  of  travel,  at  night  as  well  as  by  day. 
and  if  it  fails  to  do  so  it  is  liable  for  injuries  sustained  in  conse- 
quence of  such  failure,  providing  the  party  injured  was  exer- 
cising reasonable   care  and  caution.      Therefore,   it   becomes  a 


1862  INSTRUCTIONS  TO  JURY. 

question  of  fact  for  you  to  determine  in  this  case  as  to  whether 
or  not  this  defendant  was  negligent  in  the  way  the  street  was 
left  at  the  time  of  the  accident.  If  you  find  from  the  evidence 
that  the  plaintiff,  while  driving  on  the  street,  could  see  or  was 
actually  aware,  because  of  the  electric  lights  or  otherwise,  that 
the  stone  in  question  was  in  the  street  and  obstructed  it,  never- 
theless he  had  the  right  to  continue  to  proceed  on  his  way,  but 
it  was  his  duty  in  doing  so  to  use  ordinary  care  to  avoid  such 
obstructions  or  danger  liable  to  be  caused  thereby,  and  if,  while 
so  doing,  in  the  exercise  of  ordinary  care,  he  drove  against  such 
obstruction  and  was  thrown  from  his  buggy  and  injured,  the 
defendant  would  not  be  relieved  from  responsibility  for  such 
injury  by  reason  of  such  attempts  or  acts  of  the  plaintiff  in 
and  about  attempting  to  proceed  in  his  way,  but  in  doing  so  he 
must  have  exercised  ordinary  care ;  failing  in  this,  he  can  not 
recover,  even  should  you  find  that  the  defendant  was  guilty 
of  negligence.     *     *     * 

A  municipal  corporation  is  not  liable  for  every  accident  that 
may  occur  from  obstructions  or  defects  in  its  streets.  Its  officers 
are  not  required  to  do  everything  that  human  energy  and 
ingenuity  can  possibly  do  to  prevent  the  happening  of  acci- 
dents or  injury  to  citizens.  If  it  exercise  ordinary  and  rea- 
sonable care  in  that  regard,  they  have  discharged  their  duty 
to  the  public.1 
i  Gillmer.  J.,  in  Rosser  v.  Village  of  Girard,  Trumbull  County. 

Sec.  2060.     City  to  keep  sidewalks  in  reasonably  safe  condi- 
tion for  travel. 

The  court  says  to  you  as  a  matter  of  law  that  it  was  the  duty 
of  the  defendant,  by  its  proper  officers  and  agents,  to  see  that 
the  sidewalks  in  the  corporate  limits  of  the  city  were  in  a 
reasonably  safe  condition  for  persons  to  travel  over  in  the  day- 
time or  in  the  night  season. 

A  municipal  corporation,  however  is  not  liable  for  every  ac- 
cident that  may  occur  from  defects  in  its  sidewalks  or  streets. 
Its  officers  are  not  required  to  do  everything  that  human  energy 


MUNICIPAL   CORPORATIONS — STREETS — SIDEWALKS.  1863 

and  ingenuity  can  possibly  do  to  prevent  the  happening  of  acci- 
dents or  injuries  to  a  citizen.  If  it  has  exercised  reasonable  care 
in  that  regard,  and  if  its  streets  are  in  a  reasonably  safe  condi- 
tion, it  has  then  discharged  its  duty  to  the  public.1 

i  Gillmer,  J.,  in  Wallace  v.  City  of  Warren,  Trumbull  Co.  Com.  Pleas. 
City  will  be  liable  for  defect  in  street  or  sidewalk  causing  injury. 
Dillon's  Municipal  Corporations,  sec.  1007.  But  the  defect  must 
be  the  proximate  cause,  Id.  A  municipality  is  not  an  insurer 
against  accidents  upon  streets,  but  is  held  to  reasonable  care  in 
keeping  them  free  from  nuisance.  It  is  not  bound  to  anticipate 
improbable  or  unprecedented  events.  Village  v.  Kallagher,  52 
0.  S.  183,  187,  and  cases  cited. 


Sec.  2061.    Injured  party  to  show  actual  or  constructive  notice 
to  city. 

The  burden  is  upon  the  plaintiff  to  show  by  a  preponderance 
of  the  evidence  that  the  defendant  had  actual  or  constructive 
notice  of  the  defect  claimed  in  the  street,  before  recovery  can 
be  had.  Actual  or  constructive  notice  of  the  defect  complained 
of  must  be  given  a  sufficient  length  of  time  in  order  to  enable, 
it  to  repair  the  defect,  if  any  existed. 

Constructive  notice  would  be  where  the  defect  had  existed 
for  such  a  length  of  time  prior  to  the  alleged  injury  that  the 
city,  in  the  exercise  of  ordinary  care  and  diligence,  would  or 
should  have  known  of  the  defect.  If  it  should  appear  that 
the  city  did  not  know  of  the  particular  defect  in  the  walk 
that  caused  the  injury  to  plaintiff,  but  that  the  sidewalk  gen- 
erally, as  is  alleged  and  claimed,  was  defective,  then  you  are 
instructed  that  in  order  to  charge  the  municipality  with  notice 
of  the  particular  defect  from  its  knowledge  of  the  existence  of 
a  general  one,  the  first  should  be  of  the  same  character  as 
the  latter,  or  at  least  so  related  to  it  that  the  particular  de- 
fect is  a  usual  and  concomitant  of  the  general  one.  To  con- 
stitute knowledge  of  the  general  defect  notice  of  the  partic- 
ular one,  they  must  at  least  be  of  the  same  general  character, 
or  the  latter  a  usual  concomitant  of  the  former,  and  substan- 
tially at  the  point  or  place  where  the  accident  occurred. 


1864  INSTRUCTIONS  TO  JURY. 

In  this  case  the  court  says  to  you  that  if  you  find  that  the 
city  knew  that  the  particular  places  across  the  sidewalk  at  the 
point  in  question  were  generally  loose,  or  if  you  find  that  it 
knew  that  the  stringers  had  become  rotten  so  that  the  nails 
would  easily  draw  from  them,  and  then  you  further  find  that 
the  plaintiff  was  injured  on  account  of  her  putting  her  foot 
through  a  hole  in  the  sidewalk,  on  account  of  one  of  these 
boards  that  had  become  loose,  on  account  of  the  general  char- 
acter of  the  sidewalk,  by  reason  of  the  stringers  becoming  rotten 
so  that  they  would  not  hold  the  nails,  then  you  are  instructed 
that  if  the  injury  was  caused  in  this  manner,  that  the  city 
might  be  chargeable  with  notice  of  the  defects,  although,  in 
fact,  it  did  not  know  that  the  particular  hole  through  which 
the  plaintiff  put  her  foot  existed  at  the  time.  If  however, 
the  general  defect  known  to  the  city,  if  one  was  known,  was 
not  of  the  character  to  make  the  sidewalk  unsafe,  or  was  of 
a  character  totally  unlike  the  one  which  caused  the  injury, 
so  that  the  existence  of  one  would  be  no  presumption  of  the 
existence  of  another,  then  this  would  be  no  such  notice  as  would 
bind  the  defendant.     *     *     * 

The  defendant  must  have  notice  before  there  can  be  a  re- 
covery on  the  particular  defects  in  the  sidewalk  which  caused 
the  injury  to  plaintiff.1 

i  Gillmer,    J.,   in    Wallace   r.    City    of   Warren,   Trumbull    Co.    Com.   Pleas. 
The  city  is  liable  after  notice  if  it  refuses  to  act,  53  0.  S.  605. 

Sec.  2062.  Streets  and  sidewalks  to  be  kept  in  reasonable 
repair  and  free  from  nuisance — Must  show- 
actual  or  constructive  notice. 

It  is  the  duty  of  the  city  to  keep  public  streets  and  sidewalks 
in  reasonable  repair  so  that  they  shall  not  be  dangerous  to 
people  passing  thereon.  They  should  be  free  from  nuisance, 
and  anything  dangerous  to  the  public  and  that  interferes  with 
the  public  convenience  and  safety  is  a  nuisance.1  And  if  a 
street  or  sidewalk  is  in  such  condition  as  to  be  dangerous  to 
people  passing  over  it,  then  it  is  a  nuisance  and  it  is  one  of 


MUNICIPAL,   CORPORATIONS STREETS SIDEWALKS.  1865 

those  things  that  it  is  the  duty  of  the  city  to  remedy  within 
a  reasonable  time  after  it  is  known.  Before  you  can  find  for  the 
plaintiff  you  must  find  that  the  city  knew  of  this  defective  con- 
dition of  the  walk,  or  should  have  known  of  its  being  in  that 
condition  and  apparent,  so  that  it  could  be  observed  by  people 
looking  at  it  or  people  passing  over  it,  for  a  sufficient  length 
of  time  so  the  city  should  have  known  of  it  and  had  time  to 
repair  it  before  this  time  when  the  plaintiff  claims  she  was  in- 
jured. 

If  you  find  these  facts  proof  that  there  was  that  danger- 
ous condition  of  the  walk  there,  and  it  was  a  walk  laid  down 
by  the  city,  in  a  dangerous  condition,  and  had  been  in  that 
condition  a  sufficient  length  of  time  so  the  city  knew  it,  or 
should  have  known  of  it,  or  had  it  repaired;  if  you  find  the 
plaintiff  was  passing  along  there,  and,  without  any  fault  of 
hers,  was  thrown  and  injured,  before  she  is  entitled  to  recover 
her  damages  from  the  city  for  that  injury;  if  you  do  not  find 
or  did  not  find  all  those  things,  then  your  verdict  will  be  for 
the  defendant  and  that  the  plaintiff  has  no  cause  of  action.2 

i  Municipal  corporations  are  invested  with  the  power  and  charged  with 
the  duty  of  keeping  the  streets  under  their  control  free  from 
nuisance.  Zanesville  v.  Fannan,  53  O.  S.  605;  Cardington  v.  Fred- 
ericks, 46  0.  S.  442-47. 

-  Gorman,  J.,  in  City  of  Toledo  v.  Clopeck,  supreme  court,  unreported. 
Judgments    affirmed. 

Sec.  2063.     Latent  defect — Actual  notice  to  be  shown. 

"A  latent  defect  in  a  sidewalk  is  one  that  does  not  appear 
to  the  eye,  or  would  not  appear  to  be  known  by  a  person 
walking  over  it.  The  law  does  not  presume  notice  to  a  muni- 
cipal corporation  of  a  latent  defect. 

"Before  a  municipal  corporation  can  be  held  in  damages 
for  injuries  caused  by  a  latent  defect,  the  jury  must  find  that 
the  municipal  corporation  had  actual  notice  of  such  latent  de- 
fect. 

"The  jury  must  look  only  to  the  testimony  as  to  the  con- 
dition of  the  walk  at  the  point  at  which  the    accident  is  alleged 


1866  INSTRUCTIONS  TO  JURY. 

to  have  occurred,  and  must  disregard  all  general  statements  as 

to  other  walks."1 

i  Gorman,   J.,    given    by    request    in    City    of    Toledo    v.    Clopeck,    supreme 
court,  unreported.     Judgment  affirmed  January  22,   1895,  No.  3207. 

Sec.  2064.  Sewer  sysem — Reasonable  care  required  in  con- 
struction, maintenance  and  supervision — Pro- 
viding safeguards  to  prevent  backwater  from 
sewer. 

It  is  the  duty  of  the  city  to  exercise  reasonable  care  and  skill 
and  caution  in  the  construction,  maintenance,  and  manage- 
ment of  its  sewer  system,  and  if  in  these  respects  it  is  negligent, 
the  city  is  liable  for  the  acts  of  such  negligence  to  the  person 
so  injured.  Yet  the  city  is  not  liable  for  extraordinary  care 
or  prudence,  nor  to  provide  against  extraordinary  contingen- 
cies; what  would  constitute  extraordinary  contingencies  is  a 
matter  of  fact  to  be  determined  by  the  jury  from  the  evidence 
submitted  to  them.  Its  liability  is  no  greater  than  that  imposed 
upon  private  persons  in  like  circumstances.  The  city  is  not 
to  be  held  by  the  more  stringent  rule  in  that  respect  than  the 
plaintiffs  are  for  the  safety  of  their  own  property.  In  determin- 
ing whether  the  plaintiffs  were  guilty  of  negligence  or  not  in 
providing  safeguards  to  prevent  backwater  from  the  sewer, 
and  in  properly  guarding  their  goods  from  injury,  no  higher 
or  more  stringent  rule  is  required  of  them  than  that  of  ordi- 
nary care  and  skill  and  prudence,  such  as  persons  of  ordinary 
care  and  prudence  are  accustomed  to  use  and  employ  under  the 
same  or  similar  circumstances,  in  order  to  conduct  an  enterprise 
in  which  they  are  engaged  to'  a  safe  and  successful  termina- 
tion. 

Whether  the  failure  of  the  plaintiffs  to  put  in  a  backwater 
valve,  if  you  find  such  to  be  the  fact,  was  or  was  not  negli- 
gence on  their  part  is  to  be  determined  by  you,  under  the 
rules  given  you  in  this  charge,  from  all  facts  and  circumstances 
proven  in  the  case. 


MUNICIPAL   CORPORATIONS STREETS SIDEWALKS.  1867 

The  Law  presumes  a  party  to  know  what,  by  the  exercise 
of  reasonable  care  and  prudence,  he  ought  to  know  under  all 
the  circumstances  in  the  case,  and  this  is  a  case  in  which  this 
presumption   is   peculiarly   applicable.1 

iVoris,  J.,  in  Miller  v.  Akron,  Summit  Co.  Com.  Pleas.  As  to  liability 
of  city  for  overflow  of  sewage  on  private  lands,  see  Dillon's  Munic- 
ipal Corporations,  sec.  1046. 

Sec.  2065.     Injury  from  change  of  grade— Purpose  of  a  view 
of  premises. 

You  have  viewed  the  premises  in  question  in  this  case,  but 
you  are  not  to  treat  what  you  observe  there  as  evidence;  you 
are  not  to  adopt  your  own  theory  or  opinion  as  to  the  fact 
of  reasonableness  or  unreasonableness  of  the  extent  of  the 
improvements,  or  whether  it  was  made  on  or  above  the  ordi- 
nary grade,  nor  as  to  the  value  or  extent  of  the  injury  done. 
These  facts  must  be  determined  by  the  evidence.  You  were 
permitted  to  go  and  view  the  premises  only  for  the  purpose 
of  enabling  you  the  better  to  apply  the  evidence  submitted  to 
you.1 

i  Voris,  J.,  in  Smith  r.  The  City  of  Akron. 

Sec.  2066.     Change  of  grade  within  authority,  and  without 
negligence. 

As  a  general  rule,  a  municipal  corporation  is  not  liable  for 
damages  to  property  abutting  upon  a  street,  resulting  from 
the  improvement  of  such  street,  providing  such  improvement 
is  made  within  the  scope  of  the  corporation's  authority,  and 
without  negligence  or  malice,  that  is,  if  reasonably  made.  The 
people  of  Ohio  have  always  been  jealous  of  any  encroachment 
on  the  rights  of  an  individual.  Private  property  is  held  in- 
violate by  constitutional  provision,  but  subordinate  to  the  public, 
welfare,  and  when  taken  for  the  public  use,  a  compensation 
therefor  must  be  made  in  money.     Construed  in  the  light  of 


1868  INSTRUCTIONS  TO  JURY. 

these  instructions  to  you,  this  constitutional  provision  is  opera- 
tive, and  should  be  upheld  in  cases  like  the  one  on  trial.1 
i  Voris,  J.,  in  Smith  v.  The  City  of  Akron. 

Sec.  2067.  Change  of  grade — Improvements  made  with  ref- 
erence to  established  grade — Liability  for  in- 
jury from  change  of  grade. 

If,  however,  it  be  shown  that  the  city  before  the  construction 
or  making  of  the  plaintiff's  improvements,  by  ordinance  duly 
enacted,  established  the  grade  of  said  street,  and  had  so  im- 
proved or  appropriated  the  street  as  to  indicate  fairly  and  rea- 
sonably that  no  future  change  would  be  required  by  the  city, 
and  the  plaintiff,  relying  upon  such  corporate  acts  as  a  final 
decision  as  to  the  wants  of  the  public,  improved  her  lot  in 
a  manner  suitable  to  the  established  grade,  and  afterwards  her 
improvements  were  injured  by  a  change  of  the  grade  by  the 
city,  the  rule  just  announced  1  could  not  apply.2 

If  the  plaintiff  so  made  substantial  improvements  upon  her 
lot  with  the  view  of  such  established  grade  and  level  of  the 
street,  and  the  city  thereafter  altered  the  grade,  and  dug  down 
the  street  so  as  to  materially  impair  the  value  of  such  im- 
provements, the  city  would  be  liable  to  her  for  damages  so 
far  as  the  premises  were  materially  injured  thereby,  if  the 
evidence  brings  her  within  the  provisions  and  limitations  of 
the  instructions  given  you. 

i  Ante,  2066. 

2  City  v.  Penny,  21  O.  S.  499. 

Sec.  2068.  Change  of  grade — Statute  as  to — Requirements  of 
owner  as  to  claims. 

The  statute  provides,  however,  as  a  protection  to  both  the 
owner  and  the  city,  that  before  it  can  legally  proceed  to  make 
such  improvements  as  that  made  upon  the  street,  the  council  shall 
declare  by  resolution  the  necessity  of  such  improvement,  and 
shall  give  twenty  days  notice  of  its  passage  to  the  owners  of 
property  abutting  upon   the  improvement;     *     *     *     and   all 


MUNICIPAL   CORPORATIONS — STREETS — SIDEWALKS.  1869 

plans  and  profiles  relating  to  the  improvements  shall  be  re- 
corded and  kept  on  file  in  the  office  of  the  city  engineer  or 
clerk,  and  open  to  the  inspection  of  all  parties  interested,  and 
such  owner  claiming  that  he  will  sustain  damage  by  reason 
of  the  improvement  shall,  within  two  weeks  after  the  service 
of  the  notice,  file  a  claim  in  writing  with  the  clerk  of  the 
corporation,  setting  forth  the  amount  of  damage  claimed,  to- 
gether with  a  general  description  of  the  property  with  respect 
to  which  it  is  claimed  the  injury  will  accrue;  an  owner  who 
fails  to  so  do  shall  be  deemed  to  have  waived  the  same,  and 
shall  be  barred  from  filing  a  claim  or  receiving  damages. 

Sec.  2069.  Change  of  grade — Requirements  as  to  files  and 
surveys — Reliance  upon  by  abutting  owner — > 
Failure  to  file  claim — Skill  required  of  owner 
— Reliance  upon  information  furnished  by 
engineer. 

The  law  that  requires  the  owner  to  file  his  claim  for  damages 
is  reasonable  and  founded  in  sound  state  policy.  This  is  re- 
quired among  other  things  to  enable  the  city  council  to  under- 
standing^ determine  whether  it  would  be  expedient  to  go  on 
with  the  contemplated  improvement,  taking  into  account  the 
amount  of  money  required  to  be  paid  for  damages,  whether  the 
property  owners  liable  to  pay  the  assessment  for  improvement 
ought  to  be  burdened  by  so  great  an  expense,  and  also  to  enable 
it  to  provide  the  ways  and  means  therefor.  Unless  a  short  day 
were  fixed,  the  city  would  be  greatly  embarrassed  and  delayed 
in  needful  improvements ;  this  would  be  especially  true  in  rap- 
idly growing  cities.  But  this  provision  of  the  statute  can  not 
avail  the  city  when  it  has  failed  to  serve  the  required  notice. 
If  the  notice  has  not  been  served  upon  the  plaintiff,  he  would 
not  be  barred  from  prosecuting  his  claim  for  damages,  nor 
being  considered  as  having  waived  the  same.  But  if  notice  has 
been  properly  served  upon  the  plaintiff,  who  fails  to  file  his 
claim  in  writing  for  damages  within  the  two  weeks  required  by 


1870  INSTRUCTIONS  TO  JURY. 

the  statute,  the  complainant  would  be  barred  of  the  right  to 
recover,  unless  you  find  from  a  preponderance  of  the  evidence 
that  he  is  relieved  therefrom  by  reason  of  certain  information 
which  was  procured  from  the  city  engineer. 

The  plaintiff  acting  in  good  faith  may  rely  upon  the  profiles 
and  surveys  on  file  in  the  office  of  the  city  engineer,  which  were 
consulted  by  him,  and  upon  which  he  relied  in  making  the  im- 
provements. But  for  such  as  were  kept  in  the  office  of  which 
he  had  no  notice,  and  upon  which  he  did  not  rely,  you  are  not 
to  consider  in  any  other  light  than  as  bearing  upon  the  accuracy 
of  the  plans,  profiles  and  surveys  submitted  to  you  in  evidence. 
But  they  do  not  lay  the  foundation  for  recovery  against  the 
city  unless  you  are  satisfied  from  the  evidence  that  the  same 
were  adopted  by  the  city  council,  and  this  must  appear  from  the 
records  of  the  proceedings  of  the  council. 

If  the  plaintiff  claims  to  have  been  misinformed  as  to  the 
extent  of  the  cut  in  front  of  his  premises  through  the  officials 
of  the  defendant,  and  it  appears  that  plaintiff  went  to  the  office 
of  the  city  engineer  to  examine  the  plans  and  profiles  of  the 
improvement  and  learned  therefrom  of  the  cut  to  be  made  in 
front  of  his  lot,  and  being  unable  to  obtain  the  desired  informa- 
tion therefrom  ;  or  if  the  plans  and  profiles  were  of  such  a  nature 
as  to  require  one  skilled  in  such  work  to  understand  them,  and 
the  plaintiff  thereupon  requested  the  engineer  to  give  the  desired 
information,  so  as  to  enable  him  to  prepare  or  determine  whether 
he  would  prepare  or  not  any  claim  for  damages ;  and  the  plain- 
tiff was  then   informed  that  the  cut  in   front  of  his  premises 

would  not  be  more  than  inches  at  the  east  line,  and  not 

more  than  about  feet  deep  at  the  west  line  of  his  lot, 

etc.,  such  statement  of  the  city  engineer  is  competent  evidence 
for  you  to  consider  in  determining  whether  plaintiff  should  be 
deemed  to  have  waived  his  claim  for  damages  by  not  filing  it 
within  the  two  weeks  provided  by  statute,  and  it  would  be 
competent  if  the  plaintiff,  acting  in  good  faith  and  knowing 
nothing  to  the  contrary,  relied  upon  the  statement  so  made  by 
the  city  engineer,  and  so  relying  thereon,  did  not,  and  because 


MUNICIPAL   CORPORATIONS — STREETS — SIDEWALKS.  1871 

thereof,  file  his  claim  for  damages,  such  failure  to  file  the  claim 
within  two  weeks  required  by  statute  would  not  thereby  neces- 
sarily be  deemed  to  have  waived  the  same,  nor  by  reason  thereof 
necessarily  be  barred  from  maintaining  this  action. 

Sickness  in  the  family  would  not  excuse  the  plaintiff  from 
making  the  inquiry  within  the  two  weeks,  nor  from  filing  his 
claim  within  that  time.1 

i  This  instruction  is  somewhat  changed  and  modified  in  language  from  one 
given  by  Judge  Voris  in  Smith  v.  City  of  Akron,  and  possibly  also 
in  another  case  with  some  changes,  omitting  parts  of  his  charge, 
so  as  to  make  it  general  in  its  application. 

Sec.  2070.  Change  of  grade — Plans  and  profiles— Owner  may 
rely  upon  information  and  explanation  by 
engineer. 

It  was  the  duty  of  the  city  to  have  such  a  plan  and  profile  on 
file  as  would  reasonably  advise  persons  of  ordinary  intelligence 
of  the  extent  which  the  proposed  improvement  would  affect  the 
plaintiff's  property,  but  if  it  so  failed  to  give  such  information, 
or  gave  it  in  such  a  manner  as  required  one  skilled  in  such  work 
to  understand  them,  and  the  plaintiff  was  not  so  skilled,  then 
it  was  competent  for  the  plaintiff  to  go  to  the  city  engineer  and 
seek  from  him  the  necessary  explanation  or  information,  and  to 
rely  upon  such  explanation  and  information  given  in  that  behalf 
by  the  city  engineer;  and  it  was  competent  for  the  engineer  to 
speak  in  behalf  of  the  city  in  giving  such  information.1 
1  Voris,  J.,   in   Smith  v.   City   of  Akron. 

Sec.  2071.  Change  of  grade — Adopting  county  road  as  street. 

If  you  find  from  a  preponderance  of  the  evidence  that  the 

city  of  adopted  as  a  street  of  the  city  the  county  road, 

and  established  the  same  as  such,  without  change  of  grade,  for 
more  than  thirty  years,1  and  the  plaintiff  erected  his  dwell  in-.: 
house  and  other  structure,  and  made  his  other  improvements 
thereon,  and  the  plaintiff  used  reasonable  care  and  discretion 
and  judgment  in  making  his  improvements,  with  a  view  to  the 


1872  INSTRUCTIONS  TO  JURY. 

future,  proper,  and  reasonable  change  of  grade,  and  the  city 
caused  a  change  of  grade  in  such  street  to  be  made  subsequently, 
Avhich  resulted  in  damage  to  such  improvements,  and  the  change 
of  grade  which  caused  such  injuries  could  not,  by  Ordinary  care 
and  discretion,  have  been  anticipated,  then  the  city  would  be 
liable  for  such  injuries,  if  you  find  in  other  respects  that  the 
plaintiff  is  entitled  to  recover.2 

i  Thirty  years  is  not  a  necessary  period  of  time,  but  it  should  be  so  long 

as  to  create  a  reasonable  presumption  of  the  fixed  grade. 
-  Voris,  J.,  in  Rhodes  v.  City  of  Akron. 

Sec.  2071a.     Change    of    grade — Improvement    made    before 
grade  established  is  at  one's  own  peril. 

If  you  find  from  a  preponderance  of  the  evidence  that,  at  the 
time  the  plaintiff  (or  his  predecessors  in  title)  improved  his 
property,  any  grade  had  been  established  on  the  street,  either 
by  ordinance,  or  such  improvement  and  appropriation  of  the 
street  to  public  use  by  the  authorities  of  the  city  as  to  fairly 
indicate  that  the  grade  was  permanently  fixed,  and  no  other 
change  would  be  required  by  the  city,  then  the  plaintiff  (or  his 
predecessors  in  title)  improved  his  property  at  his  peril,  and 
the  plaintiff  can  not  recover  unless  the  present  grade  upon 
which  the  improvement  has  been  made  is  an  unreasonable  one, 
or  the  street  improvement  was  negligently  done  and  by  which 
the  injury  complained  of  was  caused. 

But  if  the  nature  and  extent  of  the  improvements  and  use 
of  the  street  had  not  been  so  indicated  or  defined  by  the  de- 
fendant before  the  plaintiff  (or  his  predecessors  in  title)  made 
their  improvements,  then  they  would  be  presumed  to  have 
made  them  at  their  peril,  with  reference  to  such  future  use  or 
change  in  the  street  as  the  city  might  reasonably  adopt  and 
make,  he  would  not  be  entitled  to  recover,  unless  the  city  adopt 
an  unreasonable  grade  and  made  improvements  pursrant  thereto, 
or  made  its  said  improvements  in  such  a.  negligent  manner  as 
to  have  caused  the  injuries  complained  of.1 
i  Voris,  J.,  in  Rhodes  v.  City  of  Akron,  Summit  Co.  Com.  Pleas. 


MUNICIPAL,  CORPORATIONS — STREETS SIDEWALKS.  1873 

Sec.  2072.     Change  of  grade — Rule  as  to  unreasonable  grade. 

If  the  street  improvements  were  made  subordinate  to  an 
unreasonable  grade — were  unreasonable  in  their  nature  under 
all  the  circumstances — then  the  city  could  not  be  treated  as 
exempt  from  liability  to  the  plaintiff  to  the  extent  that  such 
unreasonable  grade  and  the  improvements  so  made  so  injured 
his  property.  But  in  that  case  the  damages  should  be  limited 
to  such  only  as  were  caused  by  the  unreasonableness  of  the 
grade,  and  the  street  improvements  made  pursuant  thereto,  and 
none  other,  and  the  extent  of  damages,  if  any  were  caused,  by 
what  would  have  been  a  reasonable  grade,  he  can  not  recover. 

In  determining  the  question  whether  the  same  was  reason- 
able or  unreasonable,  the  date  of  the  establishment  of  the  grade 
is  to  be  considered,  and  not  the  time  the  plaintiff's  improve- 
ments were  made.  And  the  city  starts  out  with  the  presump- 
tion that  its  officers  have  acted  rightfully,  and  this  presumption 
must  prevail  until  the  contrary  appears  from  a  preponderance 
of  the  evidence.  The  law  gives  the  power  and  imposes  upon 
the  city  the  duty  to  pave,  improve,  and  keep  in  reasonable  repair 
the  public  streets  of  the  city,  and  in  the  exercise  of  this  power, 
and  in  the  performance  of  these  duties,  the  law  presumes  that 
it  has  acted  rightfully  until  the  contrary  appears  from  the 
evidence.  This  presumption  of  law  as  to  the  rightfulness  exer- 
cised by  the  public  authorities  of  the  city  is  a  mere  presumption 
and  may  be  removed  by  testimony;  it  is  only  to  be  taken  as 
true  until  evidence  is  received  which  overcomes  it,  and  when 
so  overcome  this  presumption  is  removed  and  the  evidence  should 
then  control. 

This  discretion  reposed  in  the  city  council  as  to  the  exercise 
of  its  authority  and  duties  over  the  public  streets  of  the  city 
can  be  exercised  by  no  other  persons.  It  is  only  for  the  abuse 
of  that  discretion  that  the  eourts  can  interfere.  In  passing 
upon  the  question  as  to  whether  or  not  the  defendant  made  his 
improvements  on  a  reasonable  grade,  you  must  gravely  con- 
sider whether  witnesses  who  have  appeared  before  you,  after 


1874  INSTRUCTIONS  TO  JURY. 

all  the  evidence  which  you  have  had  submitted  to  you,  are  any 
better  able  to  decide  this  matter  than  the  city  council. 

If  you  find  from  a  preponderance  of  the  evidence  that  the 
city  has  exceeded  its  authority,  and  adopted  and  acted  upon  an 
unreasonable  grade,  you  should  say  so ;  but  we  feel  like  saying 
to  you  that  it  should  be  done  after  the  most  careful  deliberation 
upon  your  part,  and  upon  satisfactory  evidence.1 
i  Voris,  J.,  in  Rhodes  v.  City  of  Akron,  Summit  Co.  Com.  Pleas. 

Sec.  2073.  Change  of  grade — Whether  or  not  premises  abut 
upon  improvements  as  affecting  claim  for 
damages. 

Whether  or  not  plaintiff's  premises  did  or  did  not  abut  on 
street,  is  a  fact  to  be  determined  by  you  from  the  evi- 
dence. In  determining  this  issue,  if  you  find  that  the  lots  or 
premises  have  been  continually  owned,  used,  and  occupied  as 
one  parcel  of  land,  and  for  a  dwelling-place  and  domicile  for 
many  years,  you  may  consider  that  customary  use  and  occupa- 
tion as  determining  the  character  of  the  land,  rather  than  its 
subdivision  into  separate  parts,  and  treat  the  same  as  an  entire 
parcel  of  land. 

To  entitle  the  plaintiff  to  recover  if  is  not  necessary  that  the 

whole  of  the  front  of  the  premises  should  abut  on street ; 

but,  before  the  plaintiff  can  recover  for  injury  affecting  ingress 
and  egress  to  and  from  his  premises,  it  must  appear  that  the 

substantial  part  thereof  abuts  on  street.     Even  though 

no  part  thereof  abuts  on street,  yet  if  you  find  that  the 

defendant  wrongfully,  negligently,  and  by  reason  of  the  un- 
reasonable grade,  excavated  up  to  and  against  said  premises, 
so  as  to  substantially  and  obviously  injure  plaintiff's  said  prem- 
ises and  improvements  thereon,  he  would  be  entitled  to  recover 
to  the  extent  of  the  actual  injury  to  the  value  of  his  property 
caused  thereby,  not,  however,  including  any  damages  for  de- 
privation of  ingress  and  egress,  as  before  defined,  to  and  from 

said street.1 

i  Voris,  J.,  in  Rhodes  v.  City  of  Akron,  Summit  Co.  Com.  Pleas. 


MUNICIPAL,   CORPORATIONS — STREETS — SIDEWALKS.  1875 

Sec.  2074.     Reasonableness  of  grade  of  street — What  should 
be  considered  in  determining-. 

In  determining  the  reasonableness  or  unreasonableness  of  the 
grade  and  improvements  of  the  owner,  you  should  take  into 
account  not  only  the  grade  of  the  street  in  its  relation  to  the 
locality  of  the  plaintiff's  premises,  but  in  its  relation  to  the 
street  as  part  of  the  street  system,  and  the  relation  that  said 
street  sustains  to  this  system  and  the  grades  thereof.     You  must 

consider street  in  a  much  broader  sense  than  the  mere 

relation  it  sustains  to  the  plaintiff's  premises  or  their  immediate 
vicinity.  It  must  be  taken  with  reference  to  the  general  uses 
and  purposes  to  which  the  street  is  devoted  by  the  city  to  the 
public ;  nor  should  this  be  limited  to  the  mere  purpose  of  trav- 
eling thereon;  it  should  be  considered  with  reference  to  the 
system  of  drainage,  sewerage,  and  every  reasonable  public 
exigency  that  may  grow  out  of  its  use  and  purpose  as  one  of 
the  public  streets  of  the  city,  so  as  to  harmonize  with  its  street 
system. 

In  determining  whether  the  grade  is  reasonable  or  not,  a  mere 
difference  of  opinion  on  your  part  with  the  city  council,  whether 
the  council  exercised  official  discretion  and  authority  reasonably 
or  not,  Avould  not  justify  you  in  deciding  against  the  action  of 
the  council.  There  must  be  something  more  than  mere  differ- 
ence of  opinion.  You  must  be  able  to  find  from  the  evidence 
that  the  council  acted  unreasonably,  that  is,  arbitrarily,  oppres- 
sively, taking  into  account  the  improvement  as  a  whole,  and 
its  various  relations  as  explained  to  you,  or  their  official  action 
must  stand.1 

i  Voris,  J.,  in  Rhodes  v.  City  of  Akron,  Summit  Co.  Com.  Pleas. 

Sec.  2075.     Change  of  grade — Recovery  of  interest  on  damage. 

"If  the  plaintiff  sustained  any  injury  by  reason  of  change 
of  grade,  it  occurred  at  the  time  the  change  was  made,  and  in 
determining  the  measure  of  damages  by  the  differences  between 
the  value  of  improvements  before  the  change  of  grade  and  the 


1876  INSTRUCTIONS  TO  JURY. 

value  of  the  improvements  after  the  change,  you  are  to  con- 
sider the  values  at  that  time.  If  you  find  for  the  plaintiff  in 
that  regard,  having  assessed  a  reasonable  and  just  compensa- 
tion therefor,  you  will  then  consider  the  question  of  interest 
on  the  amount  of  damages  found  for  the  plaintiff,  and  on  that 
question,  if  you  find  that  the  plaintiff  is  entitled  to  damages, 
then  he  should  be  allowed  interest  thereon  from  the  date  of  his 
injuries  to  his  improvements  up  to  the  first  day  of  this  term."1 
i  From  Cincinnati  v.  Whetstone,  47  O.  S.  196. 

Sec.  2076.     Change  of  grade — Retaining  wall — Whether  neces- 
sary to  protect  buildings. 

"It  is  for  the  jury  to  say,  taking  into  consideration  all  the 
testimony  on  the  subject,  whether  under  the  circumstances  a 
retaining  wall  was  reasonably  necessary  to  protect  plaintiff's 
buildings  and  improvements,  and  if  a  wall  was  necessary,  then 
whether  the  wall  which  was  constructed  was  such  a  retaining 
wall  as  was  reasonably  necessary.  And  if  you  find  that  the 
wall  was  reasonably  necessary,  and  the  wall  constructed  was  a 
reasonable  one  for  the  purpose,  then  the  plaintiff  should  recover 
the  fair  and  reasonable  cost  of  such  wall.  And  if  on  this  ques- 
tion as  to  a  retaining  wall  you  find  for  the  plaintiff,  then  he 
will  be  entitled  to  recover  interest  on  the  fair  and  reasonable 
cost  of  the  retaining  wall  from  the  time  of  its  completion  up  to 
the  first  day  of  the  present  term."1 
i  From  Cincinnati  v.  Whetstone,  47  O.  S.  196. 

Sec.  2077.     Streets— Change  of  grade— Damages— A  different 
form. 

Example:  Plaintiff  owns  a  lot  with  a  house  thereon  upon 
property,  the  ownership  of  which  has  continued  for  fifteen 
years.  Claim  is  made  that,  before  the  erection  of  improvements 
upon  the  lot,  which  was  vacant  at  the  time  of  purchase,  the 
city  had  established  the  grade  for  the  street  in  front  of  the 
property;    that  the  improvements  were  made  upon  the  lot  in 


MUNICIPAL   CORPORATIONS STREETS SIDEWALKS.  1877 

conformity  with  the  grade  thus  established,  and  that  thereafter 
the  city  changed  the  grade  of  the  street,  thereby  injuring  the 
property.     The  following  instructions  may  fit  the  case : 

"There  are  several  propositions  which  the  plaintiff  must  prove 
by  a  preponderance  of  the  evidence  to  entitle  him  to  a  verdict. 
You  will  bear  in  mind  that  the  city  owns  all  the  streets  therein, 
and  has  a  right  to  exercise  the  same  measure  of  control  over  the 
streets  that  an  individual  has  over  his  own  property.1  The 
streets  are  for  public  use,  the  use  of  the  citizens  of  the  com- 
munity. The  city  has  the  right  to  change  the  grade  of  the 
streets  and  to  make  such  improvements  as  the  public  authorities 
in  charge  of  the  streets  think  in  their  judgment  ought  to  be 
made.  It  is  only  under  certain  circumstances  that  a  person 
who  owns  property  abutting  on  a  street  can  claim  damages 
from  the  city  for  injury  to  that  property.  Before  a  recovery 
can  be  had  you  must  be  satisfied  that  the  city,  before  these 
improvement's  were  made  upon  the  lot,  established  a  grade  upon 
the  street  in  front  of  this  property."2 

i  A  city  has  a  proprietary  interest  in  the  street.  Cincinnati  v.  Hamilton 
County,  1  Disn.  4;  In  re  Hotel  Alley,  25  W.  L.  B.  89.  It  is  not 
private  property  of  the  corporation.  State,  ex  rel.,  v.  Gas  Co.,  18 
0.  S.  262. 

2  Pugh,  J.,  in  Braley  v.  City  of  Columbus,  Franklin  Co.  Com.  Pleas.  City 
liable  where  it  alters  the  level  of  a  street  after  a  proprietor  has 
l)ii ilt  with  an  express  view  to  the  grade  established  by  the  city,  4 
0.  500,  4  0.  514,  15  O.  474,  18  0.  220.  Lot  owners  may  rely  on 
an  established  grade,  14  0.  S.  52.3.  Grading  vacant  lot  to  conform 
to  a  grade  is  an  improvement,  5  0.  C.  C.  225.  Improvements  made 
in  accordance  with  an  established  grade  which  is  afterwards  altered 
entitles  owner  to  compensation,  7  0.  S.  450.  One  who  builds  in 
anticipation  of  an  established  grade  may  recover  for  an  unreason- 
able grade,  34  O.  S.  328. 

Sec.  2078.     Change  of  grade  after  improvement — How  proved. 

Whether  or  not  the  municipality  has  changed  a  grade  after 
the  improvements  have  been  made  upon  the  lot  may  be  proved 
in  several  ways.  It  may  be  done  by  showing  thai  the  city 
council  passed  an  ordinance  by  the  terms  of  which  the  grade 
of  streets  was  fixed   or  established.     Where   an  ordinance   is 


1878  INSTRUCTIONS  TO  JURY. 

introduced  in  evidence  to  show  that  a  grade  has  been  made,  it 
is  necessary  that  the  plaintiff  show  proof  that  the  ordinance 
applies  to  that  part  of  the  street  upon  which  the  property  of 
the  plaintiff  is  located.  It  is  also  necessary  that  the  plaintiff 
show  proof  that  the  authorities  of  the  city  having  charge  of 
the  street  at  the  time,  pursuant  to  the  ordinance,  went  upon 
the  street  and  graded  it  as  the  ordinance  requires,  or  that  the 
public  authorities  advertised  for  contracts,  and  that  contracts 
were  awarded  to  persons  who  afterwards  went  upon  the  street 
and  graded  it  in  conformity  with  the  ordinance. 

But  the  plaintiff  is  not  limited  to  prove  an  establishment  of 
a  grade  by  legislative  action  of  the  city  council,  or  by  the  passage 
of  an  ordinance  or  resolution  of  the  council.  He  may  have  the 
right  to  offer  testimony  to  prove  that  the  public  authorities 
having  charge  of  the  streets  used  the  street  in  such  a  way  as 
to  make  it  appear  that  a  grade  had  been  permanently  established 
or  a  level  had  there  been  permanently  adopted  on  the  street, 
whether  in  accord  with  an  ordained  established  line  or  not.  To 
show  that  a  grade  has  been  fixed  by  the  city  in  this  manner  it 
is  incumbent  upon  the  plaintiff  to  show  that  the  improvement 
made  upon  the  street  by  grading  or  working  it  was  done  under 
the  direction  and  sanction  of  the  proper  public  authorities  of 
the  city.1 

i  From    Braley    v.    City    of   Columbus,    Franklin    Co.    Com.    Pleas.     D.    F. 
Pugh,  J. 

Sec.  2079.     Whether  improvement  made  in  conformity  to  es- 
tablished grade. 

Before  recovery  can  be  had  by  the  plaintiff  he  must  show 
by  a  preponderance  of  the  evidence  whether  or  not  the  improve- 
ment was  made  upon  the  lot  in  conformity  to  the  established 
grade.  It  must  be  shown  in  substance  that  the  plaintiff  was 
led  by  the  action  of  the  city  authorities  in  thus  fixing  the  grade 
of  the  street  to  take  that  surface  or  that  level  as  existing  and 


MUNICIPAL   CORPORATIONS — STREETS — SIDEWALKS.  1870 

as  established,  and  so,  without  expecting  any  change  to  be  made 

thereafter,  he  erected  his  improvements  accordingly.1 

1  From  Braley  v.  City  of  Columbus,  common  pleas.     D.  F.  Fugh,  J. 

Sec.  2080.     Change  of  grade — Damages  recoverable — Injury  to 

building — Shrubbery — Access    to    premises — 

Value  before  and  after  change. 

There  may  be  two  classes  of  damages  recovered  in  such  a  case, 

the  first  being  a  damage  to  the  property  caused  by  the  change 

of  the  grade  injuring  some  of  the  improvements  on  the  lot. 

(a)  Injury  to  fences — Shrubbery — Buildiiitj. 

If  the  change  of  grade  destroy  the  fences  or  injure  the  house 
in  any  manner,  that  would  be  an  injury  for  which  the  city 
would  be  liable  in  damages,  unless  the  city  repaired  the  dam- 
ages afterwards.  The  questions  that  you  may  consider  are 
whether  or  not  the  change  injured  the  fence,  or  property,  or 
any  shrubbery,  or  whether  it  became  necessary  to  perform  work 
upon  the  house  to  restore  it  to  a  condition  as  good  as  it  was 
before  the  change  of  grade. 

(b)  Injury  to  access. 

The  other  class  of  damages  consists  in  the  change  of  grade 
affecting  the  use  of  the  property  to  the  extent  that  the  use  of 
the  property  may  have  been  affected  by  impairing  the  access 
between  the  street  and  the  lot  and  the  improvements  thereon, 
either  over  or  to  the  property,  the  plaintiff,  if  lie  has  a  righl  to 
recover,  is  entitled  to  damages  which  he  may  sustain  by  reason 
of  such  injury  to  the  access  to  the  property.  If  the  street  was 
filled  up  so  that  the  improvements  upon  the  property  were  left 
below  the  street,  that  would  make  it  naturally  less  accessible 
from  the  street,  and  make  the  street  less  accessible  from  the 
improvement's.  If  that  has  been  proved,  then  thai  is  the  ground 
upon  which  you  may  assess  damages. 

(c)  Value  before  and  after  change. 

You  may  inquire  also  into  the  value  of  the  property  before 
and  after  the  change  of  grade,  and  also  as  to  the  cosl  or  expense 
in  making  a  change  in  the  property  so  that  it  may  correspond 


1880  INSTRUCTIONS  TO  JURY. 

with  the  change  of  grade.  This  is  for  the  purpose  of  enabling 
you  to  ascertain  what  the  depreciation  in  the  value  of  the 
property  was,  which  may  be  the  measure  of  the  damage.  If 
there  has  been  no  depreciation  in  value  there  can  not  be  any 
recovery  of  damages.  If  there  was  a  depreciation,  then  the 
plaintiff  is  entitled  to  whatever  that  depreciation  amounts  to 
as  expressed  in  dollars  and  cents.  If  the  injury  that  may  have 
been  caused  to  the  access  to  the  property  has  been  repaired  or 
remedied  by  the  city,  and  the  value  of  the  property  has  not 
thereby  been  diminished,  there  can  be  no  recovery  at  all. 

If,  after  changes  which  a  prudent  man  would  make  to  restore 
the  premises  to  as  good  condition  with  respect  to  the  new  grade 
as  they  were  in  with  reference  to  the  old,  they  are  of  the  same 
value  as  before  the  change  of  grade,  the  reasonable  cost  of  such 
restoration  would  be  what  the  owner  is  entitled  to  recover.  If. 
under  like  circumstances  they  are  less  valuable  when  restored 
than  before  the  change  of  grade,  the  amount  of  this  diminution 
in  value  should  be  added  to  the  cost  of  restoration  as  the  amount 
of  the  recovery.  If,  under  like  circumstances  they  are  more 
valuable  when  restored  than  they  were  before  the  change  of 
grade,  there  should  be  a  recovery  for  the  difference  between 
the  cost  of  restoration  and  this  increase  of  value,  if  the  increase 
of  value  is  less  than  the  cost  of  restoration ;  but  if  the  increase 
in  the  value  of  the  property  is  more  than  the  cost  of  restoration, 
then  the  plaintiff  would  not  be  entitled  to  recover  anything.1 

iFrom  Braley  v.  City  of  Columbus,  Franklin  Co.  Com.  Pleas.  Pugh,  J. 
Damages  can  not  exceed  value  of  lot,  5  O.  C.  C.  225.  Only  injury 
to  premises  and  not  to  particular  use  is  recoverable,  12  W.  L.  B. 
247  130  U.  S.  426.  See  full  discussion  of  allowance  of  benefits  in 
a  note,  ante,  p.  89. 

Sec.  2081.    Damages— Market  value— Opinion  evidence. 

Inasmuch  as  you  may  take  into  consideration  the  general  value 
of  the  property  in  the  market  before  and  after  the  change  of 
grade,  and  for  the  reason  that  it  is  the  chief  measurement  of 
damages,  the  evidence  of  course  may  take  a  wide  range.     Wit- 


MUNICIPAL   CORPORATIONS STREETS — SIDEWALKS.  1881 

nesses  may  be  put  upon  the  stand  by  both  sides,  who  will  give 
their  opinions  as  to  the  value  of  the  property.  You  are  in- 
structed, however,  that  these  opinions  are  not  binding  upon 
you.  You  are  not  bound  to  follow  them  slavishly.  These 
opinions  are  competent  testimony,  and  it  is  your  duty  to  con- 
sider them  in  determining  what  damages  there  are,  if  you  find 
there  have  been  any  damages  to  the  plaintiff;  but  you  are  not 
bound  to  adopt  the  opinions  of  the  witnesses  merely  because 
they  have  given  them.  You  will  take  all  the  evidence  into  con- 
sideration and  determine  for  yourselves,  according  to  your  own 
judgment,  what  depreciation  in  value,  if  any,  there  was.1 

i  From  Braley  v.  City  of  Columbus,  Franklin  Co.  Com.  Pleas.  Pugh,  J. 
The  measure  of  damages  is  the  difference  in  the  market  value 
before  and  after  the  change,  119  Mass.  372,  108  Mass.  ;J72,  108 
Mass.  60,  52  la.  303,  50  Wis.  78. 

Sec.  2082.     Damages — Enhancement  of  value. 

In  estimating  the  damages  which  the  plaintiff  may  have  sus- 
tained, you  can  not  deduct  from  any  injury  which  the  property 
may  have  sustained  the  general  benefit  that  the  plaintiff  re- 
ceived in  common  with  the  general  public  on  account  of  the 
improvement  in  the  street.  If  the  improvement  of  the  street, 
the  passage  to  and  from  the  city  for  the  whole  public,  not  only 
the  plaintiff  but  of  all  the  general  public,  was  rendered  more 
convenient  that  it  was  before,  then  you  can  not  deduct  thaJ 
benefit  from  the  damages  that  may  have  been  sustained  by  the 
plaintiff.  The  reason  of  that  is  that  it  is  a  public  benefit  and 
the  public  must  pay  for  it,  and  the  plaintiff  as  one  of  the  owners 
of  property  abutting  on  this  street  must  assist  in  paying  for  it. 
The  plaintiff  pays  for  that  kind  of  a  benefit  and,  therefore,  yon 
have  no  right  to  deduct  the  value  of  that  benefit  from  any 
injury  which  the  property  ma}'  have  sustained  by  the  raising 
of  the  grade  in  front  thereof.1 

'From  Braley  v.  City  of  Columbus.  Franklin  Co.  Com.  Pleas.  Pugh,  J. 
In  a  suit  to  fix  damages  to  result  from  a  strict  improvement,  it 
is  an  error  to  admit  evidence  of  enhancement  <>i"  value  mi  account  of 
improvement,   if  no  claim   is  made   that  such    increase    results    from 


1882  INSTRUCTIONS  TO  JURY. 

a  special  benefit,  different  from  a  general  benefit.  Martin  v.  Bond 
Hill,  7  C.  C.  271.  See  extensive  note  upon  the  allowance  of  benefits, 
ante,  p.  89. 

Sec.  2083.     Change  of  grade — Damages — Benefits. 

Now  when  the  city  establishes  a  grade  and  abutting  owners 
establish  improvements  on  their  property  in  accordance  with 
such  grade,  and  the  city  subsequently  adopts  a  different  grade, 
it  does  so  under  the  responsibility  of  paying  the  abutting  owners 
whatever  damages  accrue  to  the  improvements  by  reason  of  such 
change  of  grade.  Such  damages  may  be  either  on  account  of 
the  destruction  of  the  improvements,  or  by  destruction  of  part 
and  injury  to  the  remaining  part.  But  such  damages  are  allow- 
able only  with  respect  to  improvements  made  in  conformity  to 
the  established  grade,  and  are  limited  to  the  injury  to  such 
improvements. 

Hence,  in  considering  damages  which  may  have  been  made 
after  the  change  in  grade  in  19 —  and  19 — ,  if  any,  so  you 
must  exclude  from  your  consideration  any  effect  which  the 
change  of  grade  might  have  had  on  the  value  of  the  plaintiff's 
real  estate  or  land.  It  is  simply  damages  to  the  improvements 
to  which  your  inquiry  is  limited  in  that  regard.  As  to  the 
amount  of  such  damages,  it  is  simply  determined  by  your  ascer- 
taining the  decrease  in  value,  how  much  less  valuable  were  these 
improvements  by  reason  of  raising  the  grade  of  the  street.  In 
other  words,  the  damages  are  to  be  measured  by  the  difference 
between  the  value  of  the  buildings  and  structures  immediately 
before  the  change  of  grade  in  19 —  and  19 —  and  the  value 
immediately  after  the  change  of  grade,  without  deduction  for 
general  benefits  that  might  accrue  from  change  of  grade  in  the 
vicinity,  or  from  the  fact  that  the  propertv  from  the  change  of 
grade  may  be  improved  for  public  use  or  passage.1 

Benefits  of  that  sort  belong  to  the  public  and  are  not  to  be 
considered  by  you  in  estimating  these  damages.  To  the  extent, 
therefore,  that  the  use  of  these  buildings  and  improvements  are 
affected  by  impairing  the  access  to  the  buildings  from  the  street, 


MUNICIPAL   CORPORATIONS — .STREETS— SIDEWALKS.  1883 

to  the  extent  they  have  been  injured  in  any  other  manner  by 
reason  of  the  change  of  grade,  whether  by  injuring  the  walls, 
impairing  the  usefulness  of  the  buildings,  or  causing  dampness, 
so  far  as  the  change  of  grade  blocks,  impairs,  or  interferes  with 
the  access  to  the  property  and  the  damage  to  the  structures, 
it  is  for  your  consideration.  So  you  have  also  the  right  to  con- 
sider whether  or  not  the  buildings  can  be  repaired,  or  whether 
they  may  be  rebuilt  or  reconstructed  or  abandoned.  These  are 
all  matters  to  be  considered  by  you  in  considering  how  much 
less  valuable  the  premises  are  by  reason  of  the  changes  made. 
It  is  not  necessary  that  you  should  know  what  the  owners  may 
do  in  regard  to  repairing,  restoring,  or  abandoning  the  build- 
ings, but  for  the  purpose  of  determining  the  extent  of  the  dam- 
ages, whether  that  has  been  partial  or  entire.  Whether  a  partial 
destruction  or  entire  destruction,  and  for  that  purpose  you  may 
consider  the  probability  of  what  a  prudent  man  would  do  under 
such  circumstances;  whether  to  repair,  restore,  pull  down  and 
rebuild,  or  abandon. 

Bearing  in  mind  all  the  time  that  the  thing  you  are  to  deter- 
mine is,  how  much  less  valuable  the  improvements  were  after 
the  change  of  grade  than  they  were  before.  Testimony  has  been 
introduced  as  to  the  value  of  the  structures  and  improvements 
before  the  change  of  grade  and  after  the  change  of  grade,  also 
in  regard  to  the  cost  of  modifying  or  adapting  the  buildings  to 
the  new  grade,  according  to  the  various  plans,  all  of  which  has 
been  admitted  not  as  fixing  the  amount  of  damage,  but  to  aid 
you  in  arriving  at  the  amount  of  decrease  in  value.  There  is 
no  certain  rule  that  can  be  laid  down  as  to  tbe  extent  of  which 
improvements  are  affected  by  such  a  change  of  grade.  It  is  a 
question  which  must  be  left  to  your  judgment.  Taking  into 
consideration  the  estimates  and  opinions  of  witnesses,  hut  being 
in  the  end  your  own  judgments.  Opinions  of  witnesses,  in  the 
way  of  estimates  of  damages,  are  testmony,  hut  only  testmony. 
And  it  is  your  province  to  judge  of  the  weight  of  the  testimony.2 

i  Martin  v.  Bond  Hill,  7  C.  C.  271. 

•From  Cincinnati  v.  Whetstone,  40  0.  8.  196.     Sec  generally  as  to  dam- 
ages where  Ohio  cases  are  collected. 


1884  INSTRUCTIONS  TO  JURY. 

Sec.  2084.     Damages  to  property  owner  by  construction  of 
street. 

As  the  case  has  been  submitted  to  you,  there  is  only  one  thing 
for  you  to  do,  and  that  is,  the  value  of  this  property  must  be 
assessed  at  the  time  it  was  appropriated  to  street  purposes,  and 
the  damage,  if  any  there  was,  to  the  remainder  by  reason  of 
the  taking  of  the  part  which  wras  taken.  The  question  to  be 
passed  upon  divides  itself  into  two  parts.  First,  the  value  of 
the  property  which  was  taken,  and,  second,  the  question  as  to 
whether  the  remainder  of  it  was  damaged,  and,  if  it  was,  how 
much.  As  to  the  first  question,  the  plaintiffs  are  entitled  to 
receive  the  fair  cash  value  of  the  property  at  the  time  it  was 
taken.  It  is  not  what  it  may  have  sold  for  for  any  particular 
purpose,  or  in  any  particular  manner,  but  what  it  would  have 
sold  for,  taking  it  for  all  reasonable  uses  it  might  have  been 
put  to,  what  was  its  then  fair  selling  value.  And  you  will  con- 
sider the  nature  of  the  property,  its  surroundings,  and  all  the 
legitimate  uses  to  which  it'  could  have  been  put,  and  all  the 
testimony  before  you  on  the  subject  of  its  value,  and  of  the 
value  of  the  property  in  that  vicinity,  which  has  been  submitted 
for  the  purpose  of  enabling  you  to  arrive  at  what  this  piece  of 
ground  was  worth.  You  are  not  to  regard  it  as  if  you  were 
buying  it ;  nor  are  you  to  regard  it  as  if  you  were  selling  it ; 
but  generally  to  look  upon  it,  disinterestedly,  and  to  endeavor 
to  arrive  at  its  fair  cash  market  value  at  the  time  when  it  was 
taken,  as  it  lay  then. 

Coming  then  to  the  other  question  as  to  the  remainder  of  the 
property.  The  plaintiffs  are  entitled  to  something  in  addition, 
if  the  value  of  the  remainder  has  been  reduced  by  reason  of  the 
appropriation  in  some  way  other  than  the  mere  taking  away; 
of  course  the  value  would  be  reduced  by  taking  off  a  portion, 
but  if  that  is  all  the  damage  done,  when  you  have  paid  them 
for  the  portion  that  has  been  taken,  that  would  be  all  they  are 
entitled  to.  But  it  sometimes  happens  that  in  taking  off  a  piece 
of  property,  the  remainder  is  lying  in  such  a  situation  as  to  be 
unavailable,  or,  at  least,  of  very  little  use  or  value.     So,  while 


MUNICIPAL  CORPORATIONS — STREETS — SIDEWALKS.  1885 

there  may  be  a  considerable  piece  of  property  left  in  some  cases, 

yet  it  is  lying  in  such  shape  and  condition  that  it  is  of  very 

little  use,  and  that  is  what  we  mean  when  we  say  they  are  entitled 

to  recover  any  damage  of  that  sort  which  may  have  occurred 

to  this  piece  of  property  which  is  left.     You  will  consider  its 

situation  immediately  after  the  appropriation  was  made  by  the 

city.      To  determine  whether  or  not  it  was  damaged  by  the 

appropriation   of  the   piece   that  was  taken   for  some   purpose 

you  may  take  into  consideration  the  fact   that  the  piece  that 

was  taken  was  taken  for  street  purposes;    and  in  determining 

this  question  of  the  damage  to  the  remainder,  you  may  take 

into  consideration   whether  there   were  any  incidental  benefits 

to  the  remainder  which  would  offset  any  damage  that  there 

might  be  in  some  aspects ;    for  instance,  it  might  be  damaged 

in  one  aspect  of  it,  and  it  might  be  benefited  in  another,  and 

in  considering  the   question  of  damage  to  the  remainder,  you 

may  take   that  matter  of  benefit   into   consideration,   so   as   to 

determine  whether  upon  the  whole  the  piece  that  remains  i" 

possession  of  the  L.  estate  was  or  was  not  damaged.     If  it  was 

not,  upon  the  whole,   then  they  are  not  entitled  to  anything. 

If  it  was,  then  they  are  entitled  to  the  amount  of  that  damage, 

whatever  you  may  find  it  to  be;    but  in  no  event  can  you  set 

off  any  benefits  that  may  have  accrued  to  the  property,  or  any 

of  it,  by  reason  of  the  construction  of  a  new  street  there,  as 

against  the  compensation  that  the  plaintiffs  are  entitled  to  for 

the  amount  actually  taken ;   that  they  are  to  have  compensation 

for  under  the  constitution  and  laws  of  this  state,  without  any 

deduction  for  any  benefit  that  the  street  may  have  been  to  the 

remainder.1 

i  From  Joseph   Longworth,  et  al.,   v.  City   of   Cincinnati,   supremo  court. 
No.  1453.     H.  D.  Peck,  J. 

Sec.  2085.  Excavation  in  street — Negligence  in  making— Sig- 
nals or  lights — Right  of  travel  subject  to  tem- 
porary obstructions  or  excavations. 

Negligence  on  the  part  of  the  defendant   is  the  failure  of  its 
servants  or  agents  to  observe  such  ordinary  care  and  prudence 


1886  INSTRUCTIONS  TO  JURY. 

as  was  reasonably  necessary  to  be  observed  by  them  as  ordinary 
and  prudent  persons  engaged  in  the  work  of  making  the  exca- 
vation and  in  maintaining  such  signals  by  lights  or  other  guards 
as  were  reasonably  necessary  to  warn  persons  lawfully,  pru- 
dently and  carefully  passing  along  the  street  of  the  danger 
therefrom. 

In  determining  the  question  of  the  alleged  negligence  of  the 
defendant,  the  jury  will  consider  the  nature  and  character  of 
the  excavation  and  its  location  in  the  street. 

Negligence  of  the  plaintiff  under  the  conditions  and  circum- 
stances shown  by  the  evidence,  is  the  failure  on  her  part  to 
observe  such  care  and  prudence  as  was  reasonably  required  to 
be  exercised  by  her,  or  such  care  and  prudence  as  would  be 
observed  by  an  ordinarily  prudent  and  careful  person,  passing 
along  the  street  and  around  the  excavation  in  order  to  avoid 
injury  to  herself. 

In  determining  whether  she  exercised  ordinary  care  under 
the  facts  and  circumstances  shown  by  the  evidence,  the  jury  will 
consider  all  the  evidence  showing  the  nature  of  the  excavation, 
the  signals,  lights,  or  other  means  of  warning,  the  means  and 
opportunity  she  had  of  learning  and  knowing  the  danger  from 
such  excavation. 

Negligence  of  either  plaintiff  or  defendant  is  the  failure  of 
either  to  observe  such  care  as  ordinary  prudence  would  have 
observed  under  the  conditions  and  circumstances  shown  by  the 
evidence. 

Ordinary  care  is  that  degree  of  care  and  prudence  which 
persons  of  ordinary  care  and  prudence  are  accustomed  to  observe 
under  similar  circumstances. 

Ordinary  care  as  applied  to  the  conduct  of  the  defendant  is 
such  care  as  is  ordinarily  exercised  by  ordinarily  prudent  per- 
sons engaged  in  making  similar  excavations  in  the  streets  of  a 
city,  and  in  guarding  the  same,  and  in  adopting  such  means  of 
warning  persons  passing  along  the  street  of  the  dangers  there- 
from. 


MUNICIPAL   CORPORATIONS — STREETS — SIDEWALKS.  1887 

Ordinary  care  as  applied  to  plaintiff  is  such  care  as  persons 
of  ordinary  care  and  prudence  ordinarily  observe  in  protecting 
themselves  from  the  dangers  arising  from  such  excavations. 

The  city  is  not  an  insurer  of  the  safety  of  its  streets,  not  even 
against  injury  from  dangerous  excavations. 

The  right  of  transit  in  the  use  of  the  streets  is  subject  to  such 
incidental,  temporary  obstructions  or  excavations  as  are  reason- 
ably necessary  in  the  construction  of  trenches  or  excavations 
incident  to  public  or  private  improvements,  which  are  qualifi- 
cations of  the  right  of  transit  in  the  streets  when  they  are  made 
and  guarded  by  the  exercise  of  ordinary  care  and  prudence. 

It  is  the  duty  of  a  city,  and  it  was  the  duty  of  defendant  in 
making  the  excavation  in  question  to  observe  such  care  and 
prudence  as  the  circumstances  reasonably  required,  considering 
its  nature  and  the  care  required  of  ordinarily  prudent  persons 
in  making  such  an  excavation  and  in  guarding  and  protecting 
the  same  from  danger  or  injury  to  persons  lawfully  passing 
along  the  street  and  who  are  in  the  exercise  of  ordinary  care 
and  prudence  under  the  circumstances. 

Duty  to  guard  excavation. 

It  was  the  duty  of  defendant,  through  its  servants  and 
agents  to  observe  ordinary  prudence  and  care  to  guard  such 
excavation  from  danger  and  injury  to  travelers  in  the  street 
in  the  exercise  of  ordinary  care  and  prudence,  by  placing  such 
guard  rails,  lights  or  other  reasonable  warnings  in  the  night 
as  was  reasonably  necessary  to  warn  foot  travelers  along  the 
street  of  the  danger  therefrom,  such  as  was  reasonably  calculated 
to  protect  persons  so  passing  along  the  street  from  injury. 

If  the  jury,  observing  and  applying  the  rules  prescribed  in 
these  instructions,  finds  that  the  defendant  failed  to  perforin  its 
duty,  and  failed  to  guard  and  protect  the  plaintiff  from  injury, 
providing  she  herself  observed  ordinary  .are,  and  that  such 
failure  or  negligence  of  defendant  was  the  proximate  cause  of 
the  injury  complained  of  by  plaintiff,  then  your  verdict  should 
be  for  the  plaintiff. 


1888  INSTRUCTIONS  TO  JURY. 

Proximate  cause  of  the  injury  is  the  efficient  cause  thereof- 
it  is  the  negligent  act  of  defendant  which  directly  caused  the 
injury. 

If  the  jury  find  that  both  plaintiff  and  defendant  were  guilty 
of  negligence  in  the  particulars  stated  in  these  instructions,  you 
will  determine  whether  the  cause  of  the  injury  to  plaintiff  was 
the  negligence  of  the  defendant,  or  whether  it  was  due  to  the 
want  of  ordinary  care  and  prudence  of  plaintiff  herself. 

If  you  find  that  the  injury  was  the  direct  cause  of  plaintiff's 
own  negligence  your  verdict  should  be  for  the  defendant. 

If  the  direct  cause  of  the  injury  was  the  negligence  of  the 
defendant,  then  your  verdict  should  be  for  plaintiff. 

And  if  so,  you  should  award  her  such  damages  as  in  your 
judgment  will  compensate  her  for  the  injury  by  her  sustained 
considering  the  nature  and  extent  thereof.  In  awarding  her 
damages  you  may  consider  pain  and  suffering,  if  any,  she  suf- 
fered from  such  injury,  and  you  will  include  the  cost  of  medi- 
cal attention  as  shown  by  the  evidence.1 
'  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  2086.     Obstruction  of  sidewalk  when  building. 

1.  City  may  permit  reasonable  part  to  be  used. 

2.  Right  and  duty  of  traveler  in  use  of  sidewalk. 

3.  City  not  liable  unless  it  had  notice  and  knowledge. 

1.  City  may  permit  reasonable  part  to  be  used.  The  city  had 
the  right  to  permit  a  reasonable  part  of  the  sidewalk  to  be  used 
for  the  purpose  of  depositing  thereon  building  materials  used 
in  the  process  of  constructing  the  building. 

2.  Right  and  duty  of  traveler  in  use  of  sideicalk.  The  plain- 
tiff had  the  right  to  use  the  sidewalk  unobstructed  and  free 
from  danger,  but  subject,  however,  to  such  incidental  temporary 
or  partial  obstructions  as  are  necessarily  occasioned  in  the  build- 
ing of  houses  fronting  upon  the  street.  But  in  using  the  side- 
walk she  must  exercise  reasonable  and  ordinary  care  to  avoid 
obstructions  if  any  be  found  thereon.  In  the  night  time  she 
had  the  right  to  suppose  in  the  absence  of  signals,  if  that  be 


MUNICIPAL   CORPORATIONS — STREETS — SIDEWALKS. 


ISS'.t 


the  fact,  that  the  sidewalk  was  not  dangerously  obstructed,  or 
dangerous  to  pass  over,  but  in  passing  over  it  she  must  exercise 
ordinary  care  and  prudence  to  avoid  any  dangerous  obstruc- 
tions. It  does  not  mean,  however,  that  she  may  shut  her  eyes 
and  take  her  chances  on  any  possible  condition  of  things.  She 
is  required  to  use  that  care  and  discretion  that  prudent  persons 
are  accustomed  to  use  in  passing  along  sidewalks  under  the 
same  or  similar  circumstances. 

3.  City  not  liable  unless  it  had  notice  and  knowledge.  Whilst 
it  was  the  general  duty  of  the  city  to  keep  the  sidewalks  in  safe 
condition  for  the  use  of  persons  passing  over  the  same,  and 
liable  for  injuries  caused  by  its  negligence,  or  omission  to  keep 
them  reasonably  safe  and  open,  yet  in  such  a  case  the  basis  of 
the  action  being  negligence  it  is  not  liable  for  any  injury  re- 
sulting from  such  negligence  unless  it  had  notice  or  knowledge 
of  the  obstruction  that  caused  the  injury  before  it  was  sus- 
tained. Or  in  the  absence  of  express  or  direct  notice  such 
notice  or  knowledge  may  be  inferred  from  facts  and  circum- 
stances, if  any  there  be,  showing  the  dangerous  condition  of 
the  sidewalk  had  existed  for  such  length  of  time  and  under 
such  circumstances  and  surroundings  without  proper  lights  or 
guards  to  denote  dangerous  obstructions  as  that  the  officers 
representing  the  city  or  those  in  the  employment  of  the  city 
for  the  purpose  of  keeping  the  streets  open  and  free  from 
danger  in  the  exercise  of  ordinary  care  and  diligence  ought  to 
have  known  of  such  dangerous  condition  and  want  of  proper 
guards  at  the  right  time  and  had  time  to  place  same  in  proper 
condition.  This  is  what  is  known  as  constructive  notice.  Tl  is 
constructive  notice  as  distinguished  from  actual  notice. 

You  are  to  be  the  judges  of  the  time  necessary  to  have  con- 
stituted constructive  notice,  if  that  appears  from  the  evidence 
in  the  case.  I  can  not  instruct  you  as  to  the  exacl  length  of 
time  necessary  for  such  constructive  notice.  Tt  should  be  for 
such  a  length  of  time  and  under  such  circumstances  and  snr 
roundings  as  in  the  exercise  of  ordinary  care  it  ought  to  have 


1890  INSTRUCTIONS  TO  JURY. 

been  known,  or  it  must  be  held  to  be  known,  because  it  was  bound 
to  have  been  known  by  reason  of  its  long  existence. 

You  will  first  consider  whether  the  sidewalk  was  so  obstructed 
and  in  such  a  condition  by  reason  of  the  materials  alleged  and 
without  proper  signals  or  guards  as  to  be  dangerous;  then 
whether  the  city  knew  it.  In  this  action  if  it  appears  from  the 
evidence  that  the  city  had  no  notice,  express  or  implied  of  such 
obstruction  to  the  sidewalk,  and  the  city  did  not  cause  said 
obstructions,  then  the  defendant  is  not  liable,  and  in  such  event 
your  verdict  should  be  for  the  defendant.1 

iPenrod  v.  City  of  Columbus,  Court  of  Com.  Pleas,  Franklin  Co.,  Ohio. 
Ratbmell,  J. 


CHAPTER   CXXI. 
NEGLIGENCE— GENERAL  RULES. 


SEC. 

2087. 
2088. 


2089. 
2090. 

2091. 

2092. 

2\)93. 

2094. 
2095. 
2096. 

2097. 

2098. 


2099. 
2100. 


2101. 


SEC. 

General     form     of     opening       2102. 

statement. 
Explanatory     instruction    to       2103. 

jury  concerning  its  duty.       2104. 

1.  As  to  duty  of  parties  un- 

der the  circumstances.  2105. 

2.  Concerning  claims  of  both 

parties. 

3.  Jury  to  find  ultimate  fact.       2106. 
Another   form   of   opening. 
Negligence  —  Ordinary     care       2107. 

— Defined. 

Negligence — Another     defini-       2108. 
tion.  2109. 

Negligence — A  concise  defi- 
nition. 2110. 

Negligence  exists  only  where 
there  is  a  duty — Essen- 
tial elements.  2111. 

Imports  want  of   attention. 

Negligence  active  or  passive. 

Ordinary     care  —  Negligence 

— Relationship — Duty.  2112. 

No    element    of    purpose    or 

moral  turpitude.  2113. 

Ordinary  care  under  circum- 
stances of  peculiar  peril       2114. 
— Intent  not  an  element       2115. 
of  negligence. 

When   negligence   is  wanton.       2116. 

General    duty    to    everybody 
becomes      a      particular 
duty     to     single     person 
when — Duty  of  owner  of       2117. 
premises    to    keep    them       2118. 
reasonably  safe. 

Cause      not      negligent      act       2119. 
alone — But  injury  proxi- 
mately    resulting     from       2120. 
breach  of  duty. 


Burden  of  proving  negli- 
gence. 

Ordinary  care. 

Ordinary  care  under  circum- 
stances of  peculiar  peril. 

No  presumption  of  negli- 
gence against  either 
party. 

Proximate  cause  defined  and 
explained. 

Proximate  cause  —  Another 
definition. 

Contributory   negligence. 

No  recovery  where  there  ia 
contributory    negligence. 

Contributory  negligence 
must  be  proximate  cause 
of    injury. 

When  plaintiff  must  show 
himself  without  fault,  or 
to  rebut  inference  of  neg- 
ligence. 

Burden  of  proving  contrib- 
utory   negligence. 

Contributory  negligence  as 
applicable   to  children. 

Consent    of   children — Effect. 

Contributory  negligence — In- 
toxication   as   affecting. 

Contributory  negligence  — 
Eusband  performing  du- 
ties as  3UCh  not  agent  of 

wife. 

Tmputcd  negligence. 
Negligence  of  parent  not  im- 
puted to  child. 
Duty    of    employer   to    infant. 

employ  ee. 

The  last  clea-  chance  doc- 
trine. 

1801 


1892  INSTRUCTIONS  TO  JURY. 

SEC.  SEC. 

2121.  Concurrent   negligence.  2125.     Sudden     peril  —  Conduct    of 

2122.  When  negligence  of  plaintiff  person  placed  in. 

not  continuing,  but  that  2126.     Rescuing  one  from  danger — 
of  defendant   is  continu-  Injury  while  attempting 

ing   and   proximate,  to     rescue — Contributory 

while  that  of  plaintiff  is  negligence, 

remote.  2127.     Law  designs  to  hold  the  one 

2123.  Injury   to   passenger    by   de-  whose  conduct  causes  in- 

railment   res   ipsa   loqui-  jury,     whether     plaintiff 

tur.  or   defendant — It   is    the 

2124.  Burden    of    proof    when    in-  nature  of  man  to  protect 

jury   caused  by  res  ipsa  himself,   and  this   is  the 

loquitur.  measure  of  duty  in  law. 

Sec.  2087.     General  form  of  opening  statement. 

After  statement  of  pleadings  and  facts  proceed: 
By  this  statement  of  the  claims  of  the  parties  you  have  been 
given  in  substance  the  matters  on  which  the  parties  are  at 
issue  by  their  pleadings.  These  pleadings  will  be  before  you 
and  can  be  examined  by  you ;  but,  aside  from  the  admissions 
therein,  they  are  not  evidence  in  the  case,  and  must  not  be 
considered  or  regarded  by  you.  These  issues  present  for  your 
consideration  and  determination  three  principal  propositions 
which  are  as  follows:  1.  Was  the  defendant  negligent  in  one 
or  all  of  the  particulars  complained  of?  2.  If  so  negligent,  was 
this  negligence  the  proximate  cause  of  the  injury  to  plaintiff 
of  which  he  complains?  3.  Did  the  negligence  or  want  of  care 
on  the  part  of  the  plaintiff  contribute  to  cause  or  produce  the 
injury  which  he  sustained  ? 

Taking  up  these  questions  in  the  order  suggested,  you  will 
proceed  to  inquire  and  determine  whether  or  not  the  defend- 
ant was  negligent  in  any  or  all  of  the  particulars  complained 
of,  and  if  you  find  that  it  was  not  so  negligent,  then  you  need 
not  inquire  further,  but  should  return  your  verdict  for  the 
defendant;  but  if  you  find  it  was  so  negligent,  then  you  will 
proceed  further  and  inquire  and  determine  whether  or  not  this 
negligence  so  found  by  you  was  the  proximate  cause  of  the 
injury  to  the  plaintiff  of  which  he  complains,  and  if  you  find 


NEGLIGENCE GENERAL  RULES.  1893 

it  was  not  such  cause,  you  need  not  inquire  further,  but  return 
your  verdict  for  the  defendant;  but  if  you  find  it  was  such 
cause,  then  you  will  proceed  to  inquire  and  determine  whether 
or  not  the  plaintiff  himself  was  negligent,  and  if  you  find  he 
was  negligent  and  that  his  negligence  contributed  to  the  cause 
or  produced  his  injuries,  the  defendant  would  be  entitled  to 
your  verdict;  but  if  you  find  there  was  no  contributory  negli- 
gence on  the  part  of  the  plaintiff,  and  have  also  found  the  otlier 
matters  to  which  your  attention  has  just  been  called  in  his  favor, 
then  the  plaintiff  would  be  entitled  to  your  verdict. 

Sec.  2088.     Explanatory   instruction   to   jury   concerning'   its 
duty. 

1.  As  to  duty  of  parties  under  the  circumstances. 

2.  Concerning  claims  of  both  parties. 

3.  Jury  to  find  ultimate  fact. 

To  enable  you  to  decide  the  fact,  the  court  instructs  the  jury 
as  to  the  duty  of  the  defendant  as  well  as  that  of  the  plaintiff 
and  his  servant  or  agent  under  the  conditions  and  circumstances 
disclosed  by  the  evidence  and  according  to  the  undisputed  facts 
before  stated. 

Gentlemen,  the  court  being  aware  of  the  claims  asserted  by 
parties,  charges  the  law  applicable  to  both.  One  asserts  one 
claim  in  evidence,  and  another  another;  the  court  knows  that 
the  jury  may  form  your  own  conclusions  on  the  evidence  and 
on  the  facts  which  you  will  find  from  the  evidence.  The  func- 
tion of  the  court  is  merely  to  charge  the  jury  as  to  the  law  upon 
the  conflicting  claims  made  by  the  plaintiff  and  the  defendant. 
The  court  states  the  rule  of  law  that  will  govern  the  claim  of 
plaintiff,  as  well  as  that  relating  to  the  claim  of  defendant  so 
that  the  jury,  by  the  application  of  the  ride  of  condud  and  of 
the  law,  may  apply  it  according  as  it  may  find  the  facts  to  be. 

There  is  in  law  a  term  that  is  designated  an  ultimate  fact. 
That  means  a  fact  which  will  be  drawn  from  the  evidence  in 
the  case  by  the  jury.  That  ultimate  fact  is  evidenced  by  the 
verdict  of  the  jury;    that  ultimate  fact  is  the  fact  to  which  the 


1894  INSTRUCTIONS  TO  JURY. 

law  attaches  legal  consequences.  The  court  gives  you  the  law, 
and  you  attach  the  legal  consequences  to  the  act  by  your  verdict, 
because  you  must  follow  the  rule  of  law  given  you  by  the  court ; 
so  that  by  your  verdict,  in  the  end,  you  not  only  find  the  fact, 
but  you  attach  the  legal  consequences  by  the  application  of  the 
rule  of  law  given  you  by  the  court  in  your  verdict. 

Sec.  2089.     Another  form  of  opening. 

The  plaintiff  holds  the  affirmative,  upon  him  rests  the  burden 
of  establishing  the  right  to  recover.1 

There  is  no  presumption  that  the  railroad  company  was  neg- 
ligent, or  that  the  negligence  of  the  railroad  company  occasioned 
the  injury  complained  of,  from  the  mere  fact  that  the  plaintiff 
received  his  injury  while  he  was  in  the  service  of  the  company.2 
To  entitle  the  plaintiff  to  recover  it  is  incumbent  upon  him  to 
show  by  a  preponderance  of  evidence  that  the  company  was 
negligent  in  the  respects  complained  of  in  the  petition — or  some 
of  them — and  that  the  injury  which  the  plaintiff  received  se- 
sulted  directly  from  such  negligence.  And  there  is  this  further 
general  rule :  Notwithstanding  any  negligence  of  the  defendant, 
the  plaintiff  can  not  recover  if  he  was  himself  guilty  of  con- 
tributory negligence,  as  it  is  called,  that  is,  ■  if,  by  his  own 
failure  or  omission  to  exercise  ordinary  and  reasonable  care, 
he  contributed  to  his  own  injury. 

The  burden  of' proving  contributory  negligence  on  the  part 
of  the  plaintiff  is  upon  the  defendant,3  with  this  qualification: 
that  if  the  testimony  introduced  by  the  plaintiff  as  to  the  cir- 
cumstances under  which  this  injury  was  received  fairly  raises 
a  presumption  in  your  minds  that  he  was  guilty  of  contributory 
negligence,  then  the  burden  is  upon  him  to  remove  that  pre- 
sumption.4 

The  general  questions,  then,  which  are  involved  in  this  case 
are :  whether  there  was  negligence  on  the  part  of  the  defendant, 
and  whether  there  was  contributory  negligence  on  the  part  of 
the  plaintiff.     The  burden  of  proving  contributory  negligence 


NEGLIGENCE — GENERAL,  RULES.  1895 

on  the  part  of  the  plaintiff  is  upon  the  defendant,  with  the  quali- 
fication already  stated. 

i  Cooley,  809. 

2  Cf.     Cooley   on   Torts,   794.     Presumptions  under   certain   circumstances. 

Id.    796.     There    is    a   presumption    of    negligence    from    a    collision. 

R.  R.  Co.  v.  Mowery,  36  O.  S.  418. 
s  There  is  a  presumption  that  plaintiff  is  free  from  negligence  which  casts 

burden   of  proof   on   defendant,    15   Wall.   401,   50   Cal.    7,   30    Wis. 

892,  51  Mo.  190,  66  Pa.  St.  393. 
4  Railroad  Co.  v.  Whitacre,  35  O.  S.  627.     But  see  Cooley  on  Torts,  809-10, 

cases  in  note  1,  p.  110. 

Sec.  2090.     Negligence — Ordinary  care — Denned. 

Negligence  in  a  legal  sense  consists  of  some  act  or  omission 
of  duty  that,  in  the  natural  and  ordinary  course  of  events,  might 
cause  all  the  injury  complained  of.  It  is  denned  as  being 
ordinary  want  of  care,  and  may  consist  in  doing  something  that 
ought  not  to  be  done,  or  in  not  doing  something  which  ought 
to  be  done.  By  ordinary  care  we  mean  that  degree  of  care 
which  persons  of  ordinary  care  and  prudence  are  accustomed 
to  use  and  employ  under  the  same  or  similar  circumstances, 
in  order  to  conduct  the  enterprise  in  which  they  are  engaged 
to  a  safe  and.  successful  termination,  having  due  regard  for 
the  rights  of  others,  and  the  objects  to  be  accomplished.  It  is 
such  care  as  prudent  persons  are  accustomed  to  exercise  under 
the  peculiar  circumstances  of  each  case.  If  called  into  exer- 
cise under  circumstances  of  peculiar  peril,  a  greater  amount 
of  care  is  required  than  where  the  circumstances  are  less  per- 
ilous, because  prudent  and  careful  persons  in  such  cases  arc 
accustomed  to  exercise  more  care  than  in  cases  less  perilous. 
It  is  still  nothing  more  than  ordinary  care  under  the  circum- 
stances of  the  particular  ease.  But  it  should  he  that  degree 
of  care  and  prudence  that  the  circumstances  reasonably  require; 
that  is,  it  should  be  commensurate  with  the  hazards  ordinarily 
encountered. 

The  circumstances  determine  whether  the  proper  amount  <>f 
care  has  been  exercised  or  not.     The    want    of   proper  care    is 


1896  INSTRUCTIONS  TO  JURY. 

the  want  of  that  care  which  a  reasonable  man,  guided  by  these 
considerations  which  regulate  the  conduct  of  human  affairs, 
would  have  exercised  under  the  circumstances  of  the  particular 
case,  the  failure  to  observe  the  protection  of  the  interests  of 
another  person,  that  degree  of  care,  precaution,  and  vigilance 
which  the  circumstances  justly  demand.1 

i  Voris,  J.,  in  Quinn  v.  Ewart,  Summit  Co.  Com.  Pleas. 

Negligence  defined.  Kinkead's  Code  Pig.,  see.  914;  Harriman  v.  Rail- 
way Co.,  45  O.  S.  20;  Cooley  on  Torts,  791  (659)  ;  Moulder  v.  R.  R. 
Co.,   1  O.  N".  P.  361. 

Distinction  between  gross  and  ordinary  negligence,  37  0.  S.  301,  313,  12 
O.  S.  475,  496,  28  O.  S.  388,  402;  Cooley  on  Torts,  753  (631)  ;  Jones 
on  Bailments,  4-10. 

Ordinary  care  is  usually  defined  in  instructions  according  to  definition 
in  Terry  case,  8  O.  S.  582. 

Nedigence  is  the  absence  of  care  according  to  the  facts  and  circumstances 
of  each  case,  29  Md.  420,  78  Pa.  St.  219,  54  Pa.  St.  345.  Cooley's 
definition:  "Negligence  is  the  failure  to  observe,  for  the  protection 
of  the  interest  of  another,  that  degree  of  care,  precaution  and 
vigilance  which  the  circumstances  justly  demand"  (Cooley,  630), 
is  generally  accepted.  Jaggard  on  Torts,  810,  where  various  defi- 
nitions are  collected. 

Negligence  should  be  measured  by  the  character  and  the  risk  of  the 
business.     Railway  Co.  v.  Gormly,  27  S.  W.   1051. 

Sec.  2091.     Negligence — Another  definition. 

Negligence  is  the  failure  to  do  what  a  reasonable  and  prudent 
person  would  ordinarily  have  done  under  the  circumstances  of 
the  situation,  or  doing  what  such  a  person  under  such  circum- 
stances would  not  have  done.  The  duty  is  dictated  and  measured 
by  the  exigencies  of  the  occasion.1 
i  B.  &  P.  R.  Co.  v.  Jones,  95  U.  S.  439. 

Sec.  2092.     Negligence — A  concise  definition. 

Negligence  in  law  is  meant  the  unintentional  failure  to  per- 
form a  duty  owing  to  another  whereby  damage  naturally  and 
proximately  results  to  another.  Damage  proximately  resulting 
means  that  the  act  claimed  to  be  negligent,  the  act  of  omission 
or  commission,  the  act  whereby  the  defendant  did  not  exercise 


NEGLIGENCE — GENERAL  RULES.  1897 

reasonable  or  ordinary  care,  must  proximately  result  in  an 
injury  to  another.  By  proximately  is  literally  meant  nearest, 
directly.  It  means  that  the  act  in  question  operated  directly 
to  cau^e  the  injury  and  without  the  intervention  of  any  unfore- 
seen cause  without  which  the  accident  would  not  have  occurred.1 
i  Dillon,  J.,  Franklin  county. 

Sec.  2093.     Negligence  exists  only  when  there  is  a  duty — Es- 
sential elements  to  constitute. 

Actionable  negligence  exists  only  when  one  negligently  injures 
another  to  whom  he  owes  the  duty  of  exercising  care.1  It  is  the 
failure  to  discharge  a  legal  duty  to  the  person  injured.  If 
there  is  no  duty,  there  is  no  negligence.2  There  are  necessarily 
three  elements  essential  to  its  existence:  1.  The  existence  of  a 
duty  on  the  part  of  the  defendant  to  protect  the  plaintiff  from 
injury  of  which  he  complains.  2.  A  failure  by  the  defendant  to 
perform  that  duty ;  and  3.  An  injury  to  the  plaintiff  from  such 
failure  of  the  defendant.  When  these  elements  are  brought 
together,  they  unitedly  constitute  actionable  negligence.  The 
absence  of  any  one  of  these  elements  renders  the  evidence  in- 
sufficient.3 In  order  to  maintain  an  action  for  an  injury  to 
person  or  property  by  reason  of  negligence  or  want  of  due  care, 
there  must  be  shown  to  exist  some  obligation  or  duty  towards 
plaintiff,  which  the  defendant  has  left  undischarged  or  unful- 
filled. This  is  the  basis  on  which  the  action  rests.  There  can 
be  no  fault  or  negligence  or  breach  of  duty  where  there  is  no  act 
or  service  or  contract  which  a  party  is  bound  to  perform  or 
fulfill.4 

i  B.  &  0.  R.  Co.  v.  Cox,  66  O.  S.  276. 

2  Akera  v.  R.  R.  Co.,  58  Minn.  540. 

s  Faris  v.  Hoberg,  134  Ind.  260,  30  Am.  St.  261. 

4  Sweeney  v.  R.  R.  Co.,  10  Allen,  368,  87  Am.  Dec.  644. 

Sec.  2094.     Imports  want  of  attention. 

The  term  negligence  imports  a  want  of  such  attention  to  the 
natural  and  probable  consequences  of  the  act  or  omission  com- 


1898  INSTRUCTIONS  TO  JURY 

plained  of  as  a  prudent  man  ordinarily  bestows  under  the  same 
or  similar  circumstances.1 

i  Zilke  v.  Johnson,  22  X.  Dak.  75,   132  N.   W.  640,  Am.  Ann.  Cas.   1913, 
E.  1005;  Boelter  v.  Lumber  Co.,  103  Wis.  324,  79  N.  W.  243. 

Sec.  2095.     Negligence,  active  or  passive. 

Negligence  may  be  active  or  passive  in  character;  it  may 
consist  in  heedlessly  doing  an  improper  thing  or  in  heedlessly 
refraining  from  doing  the  proper  thing.  Whether  the  circum- 
stances call  for  activity  or  passivity,  one  who  does  not  do  what 
he  should  is  equally  chargeable  with  negligence  with  him  who 
does  what  he  should  not.1 

J  Basler  v.  Gas  &  Elec.  Co.,   158  Cal.  514,   111   Pac.  530,  Ann.  Cas.   1912, 
A.  642. 

Sec.  2096.     Ordinary  care — Negligence — Relationship — Duty. 

The  term  "ordinary  care"  is  of  a  flexible  nature,  and  adapts 
itself  to  the  particular  circumstances  under  which  it  is  to  be 
applied.  It  depends  upon  the  relation  existing  between  the  par- 
ties in  interest,  as  well  as  the  business  in  which  they  may  be 
engaged,  and  varies  with  the  peculiar  phase  of  every  situation.1 
When  complaint  is  made  of  failure  to  use  ordinary  care,  a  duty 
toward  the  complaining  party  must  be  shown  to  exist.  If  there 
is  no  relationship,  there  is  no  duty.2  Unless  and  until  one  is 
brought  into  relation  with  other  men,  or  their  property  or 
right's,  he  has  no  obligation  to  act  with  reference  to  them;  and 
this  is  so,  whether  the  obligation  be  called  legal,  moral  or  rea- 
sonable, as  most  of  the  rights  of  persons  and  property  in  the 
social  state  are  not  absolute,  but  relative.3 

i  Palace  Hotel  Co.    v.  Medart,  87   O.   S.   130. 

-'  Garland  v.  Railroad,  76  N.  H.  556,  86  Atl.  141,  Am.  Ann.  Cas.  1913,  E. 
924. 

Sec.  2097.     No  element  of  purpose  or  moral  turpitude. 

The  ordinary  act  of  negligence  has  in  it  no  element  of  moral 
turpitude.     There  need  be  no  purpose  to  commit  a  wrong  as  to 


NEGLIGENCE GENERAL  RULES.  1899 

any  one,  nor  a  conscious  remissness  in  legal  duty.  When  such 
a  purpose  or  consciousness  exists,  there  is  an  added  reason  for 
holding  the  wrongdoer  responsible  for  all  consequences  of  his 
act.  It  is  this  idea  which  is  at  the  foundation  of  the  law  im- 
poses liability  when  the  fault  is  wanton  or  willful,  or  what  is 
sometimes  called  gross  negligence.1 

i  Garland  v.  Railroad,   76  X.  H.   556,   86  Atl.   141,  Am.   Ann.  Cas.    1913, 
E.  924. 

Sec.  2098.     Ordinary   care    under   circumstances   of    peculiar 
peril — Intent  not  an  element  of  negligence. 

It  is  defined  as  being  the  want  of  ordinary  care,  and  may 
consist  in  doing  something  which  ought  not  to  be  done,  or  in 
not  doing  something  which  ought  to  be  done.  Ordinary  care 
is  that  degree  of  care  which  persons  of  ordinary  care  and  pru- 
dence are  accustomed  to  use  and  employ  under  the  same  or 
similar  circumstances,  in  order  to  conduct  the  enterprise  in 
which  they  are  engaged  to  a  safe  and  successful  termination, 
having  due  regard  for  the  rights  of  others  and  the  objects  to  be 
accomplished.  The  ordinary  care  required  by  the  rule  has  not 
only  an  absolute  but  also  a  relative  signification.  It  is  such 
care  as  prudent  persons  are  accustomed  to  exercise  under  the 
peculiar  circumstances  of  each  case.  If  called  into  exercise 
under  circumstances  of  peculiar  peril,  a  greater  amount  of  care 
is  required  than  where  the  circumstances  are  less  perilous,  be- 
cause prudent  and  careful  persons,  having  in  view  the  objects 
to  be  attained,  and  the  just  rights  of  others  in  such  cases,  are 
accustomed  to  exercise  more  care  than  in  cases  less  perilous. 
The  amount  of  care  is,  indeed,  increased,  but  the  standard  is 
the  same;  it  is  still  nothing  more  than  ordinary  care  under  the 
circumstances  of  the  particular  case. 

The  circumstances,  then,  are  to  be  regarded  in  determining 
whether  ordinary  care  was  exercised.  The  want  of  proper  care 
is  the  want  of  that  care  which  a  reasonable  man,  guided  by 
those  considerations  which  should  regulate  the  conduct  of  human 


1900  INSTRUCTIONS  TO  JUEY. 

affairs,   would  have   exercised  under  the   circumstances   of   the 
particular  case. 

Intent  is  not  an  element  of  legal  negligence.  Therefore,  the 
plaintiff  need  not  show  that  the  injury  was  intentional ;  hut 
the  negligence  complained  of,  to  enable  the  plaintiff  to  recover, 
must  be  the  proximate  cause  of  the  injury. 

Sec.  2099.     When  negligence  is  wanton. 

Negligence  which  is  called  wanton  is  where  the  person  caus- 
ing the  injury  at  the  time  sees  and  knows  that  the  person  injured 
is  in  a  position  of  peril,  and,  notwithstanding  such  knowledge, 
commits  the  act  causing  the  injury,  though  it  was  in  his  power 
to  refrain  from  doing  such  act.  If  the  jury  find  from  the 
evidence  that  the  plaintiff  was  injured  by  the  pike  in  the  man- 
ner as  claimed,  and  that  one  of  defendant's  servants,  knowing 
that  she  was  there  in  a  position  of  peril,  moved  the  pike  and 
injured  her,  such  would  be  a  wanton  injury,  for  which  the 
defendant  would  be  liable.1 

i  Approved   in  Souther  v.  Tel.  <fc  Ex.   Co.,   118  Minn.   102,    136  X.  W.   571, 
Am.  Ann.  Cas.  1913,  E.  472. 

Sec.  2100.  General  duty  to  everybody  becomes  a  particular 
duty  to  single  person,  when — Duty  of  owner 
of  premises  to  keep  them  reasonably  safe. 

The  duty  which  forms  the  basis  of  a  negligent  act  may  be 
general  and  owing  to  everybody,  or  it  may  be  particular  and 
owing  to  a  single  person  only  by  reason  of  his  peculiar  position. 
But  a  duty  owing  to  everybody  can  never  become  the  founda- 
tion of  an  action  until  some  individual  is  placed  in  position 
which  gives  him  occasion  to  insist  upon  its  performance.  It  then 
becomes  a  duty  to  him  personally. 

It  is  difficult  at  times  to  distinguish  between  actions  of  nuis- 
ance and  actions  bottomed  on  negligence ;  but  in  either  case 
there  must  be  a  breach  of  some  duty  on  the  part  of  the  defendant 
before  an  action  will  lie  against  him.  Thus  one  is  under  no 
duty  to  keep  his  premises  in  a  safe  condition  for  the  visits  of 


NEGLIGENCE GENERAL  RULES.  1901 

trespassers.  But,  if  he  expressly  or  by  implication  invites 
others  to  come  upon  his  premises,  it  is  his  duty  to  be  reasonably 
sure  that  he  is  not  inviting  them  into  a  place  of  danger,  and  to 
this  end  he  must  exercise  ordinary  care  and  prudence  to  render 
the  premises  reasonably  safe  for  the  visit.1 

iTJpp  v.  Darner,  1.50  Iowa,  403,  130  N".  W.  400,  Ann.  Cas.  1912,  D.  574; 
Dalin  v.  Worcester  Con.  St.  It.  Co.,  188  Mass.  344,  74  X.  E.  597. 

Sec.  2101.     Cause  not  negligent  act  alone,  but  injury  proxi- 
mately resulting  from  breach  of  duty. 

The  cause  of  action  for  negligence  is  not  the  negligent  act; 
for  a  negligent  act  is  not  in  itself  actionable,  but  only  becomes 
the  basis  of  an  action  when  it  results  in  injury  to  another.  In 
order  to  support  an  action  there  must  be  met  only  the  negligent 
act,  but  there  must  result  therefrom  a  consequential  injury 
proximately  caused  by  the  violation  of  a  duty  owing  to  the  one 
injured  which  is  the  gravamen  or  gist  of  the  charge  of  neglect.1 

1  The  above,  in  the  main,  is  taken  from  Ochs  v.  Public  Serv.  Co..  81  N. 
J.  L.  661,  80  Atl.  49.5,  Ann.  Cas.  1912,  D.  25.5.  The  case  holds 
that  the  negligent  act  does  not  constitute  the  cause,  but  the  con- 
sequence following  it.  It  ignores  the  question  of  duty,  the  viola- 
tion of  which,  according  to  weight  of  opinion,  constitutes  the  cause. 
Bilikan  v.  Columbus  Railway  &  Light  Co.,  10  N.  P.  (N.S.)  561, 
where  the  matter  is  extensively  discussed  and  the  authorities  cited. 

Sec.  2102.     Burden  of  proving  negligence. 

The  rule  is  that  one  who  seeks  to  recover  of  another  on  the 
ground  of  negligence  on  the  part  of  the  defendant,  assumes  the 
burden  of  maintaining  not  only  the  negligence  complained  of, 
but  that  such  negligence  has  occasioned  him  loss.  And  this  he 
must  establish  by  the  greater  weight  or  preponderance  of  the 
evidence.1 
iHilsinger  v.  Trickett,  86  O.  8.  286,  Ann.  Cas.   1913,  1).  421. 

Sec.  2103.     Ordinary  care. 

Ordinary  care  means  that  degree  of  care  which  persons  of 
ordinary  care  and  prudence  are  accustomed  to  use  and  employ, 


1902  INSTRUCTIONS  TO  JURY. 

under  the  same  or  similar  circumstances,  in  order  to  conduct 
the  enterprise  engaged  in  to  a  safe  and  successful  termination, 
having  due  regard  to  the  rights  of  others  and  the  object  to  be 
accomplished.  Ordinary  care,  therefore,  requires  in  different 
circumstances  different  degrees  of  watchfulness,  so  that  what 
would  be  reasonable  or  ordinary  care  under  one  stat*  of  circum- 
stances would  not  b#  such  under  another. 

By  the  term  "ordinary  care,"  as  here  used,  is  meant  such 
care  as  ordinarily  prudent  persons  ordinarily  exercise,  or  are 
accustomed  to  exercise,  under  the  same  or  similar  circumstances, 
in  conducting  and  carrying  on  the  same  or  similar  business, 
and  this  applies  to  the  defendant  so  far  as  the  negligence  com- 
plained of  is  concerned,  as  well  as  to  the  plaintiff  in  regard  to 
contributory  negligence  on  his  part'.1 

i  Terry  case,  8  O.  S.  f>82.  The  obligation  to  exercise  care  "must  be  de- 
termined in  all  cases  by  reference  to  the  situation  and  knowledge 
of  the  parties  and  all  the  attendant  circumstances.  What  would 
be  extreme  care  under  one  condition  of  knowledge  and  one  state 
of  circumstances  would  be  gross  negligence  with  different  knowledge 
and  in  changed  circumstances,"  15  Wall.  524. 


Sec.  2104.     Ordinary   care   under   circumstances    of   peculiar 
peril. 

By  ordinary  care  is  meant  that  degree  of  care  which  a  person 
of  ordinary  care  and  prudence  is  accustomed  to  use  and  emplo}' 
under  the  same  or  similar  circumstances.  Tf  called  into  exer- 
cise under  circumstances  of  peculiar  peril,  a  greater  amount 
of  care  is  required  than  when  the  circumstances  are  less  perilous, 
because  prudent  and  careful  persons,  having  in  view  the  object 
to  be  attained  and  a  just  regard  for  the  rights  of  others,  are, 
in  such  cases,  accustomed  to  exercise  more  care  than  cases  less 
perilous.  The  amount  of  care  is  indeed  increased,  but  the  stan- 
dard is  still  the  same.  It  is  still  nothing  more  than  ordinary 
care  under  the  circumstances  of  the  particular  case.     The  jury 


NEGLIGENCE — GENERAL  RULES.  1903 

ought,  therefore,  to  take  into  consideration  the  circumstances  in 
determining  whether  or  not  ordinary  care  was  used.1 

i  Ordinary  care  varies  with  the  danger  and  circumstances,  24  0.  S.  631, 
639,  24  0.  S.  670,  676,  50  0.  S.  135,  144.  It  varies  in  proportion 
to  the  peril,  8  0.  S.  570,  581.  Even  in  dangerous  business  ordinary 
care  only  is  to  be  used;  the  degree  of  care  is  always  ordinary  under 
the  circumstances  of  each  particular  case.  The  degree  of  care  may 
be  increased  in  different  cases,  owing  to  the  character  of  surround- 
ing circumstances.     Weiser  v.  St.  R.  Co.,  10  0.  C.  C.  14. 

It  is  denominated  "ordinary,"  in  the  sense  that  it  is  such  as  persons 
of  ordinary  care  and  caution  usually  observe  under  like  circum- 
stances; and  it  is  sometimes  denominated  the  "highest"  degree  of 
care  and  caution,  in  the  sense  that  persons  of  ordinary  care  and 
caution  usually  observe  their  highest  degree  of  care  and  caution 
under  such  circumstances:  that  is,  where  human  life  is  in  peril. 
It  is  "ordinary"  care  and  caution,  with  reference  to  the  class  of 
persons  who  exercise  it,  but  it  is  the  "highest"  degree  of  care  and 
caution  with  reference  to  the  circumstances  under  which  it  is 
exercised.     Railway  Co.  v.  Snyder,  24  0.  S.  676. 

Sec.  2105.     No  presumption  of  negligence  against  either  party. 

There  is  no  presumption  against  either  party  in  this  suit, 
excepting  such  as  arises  from  the  facts  proved.  The  presump- 
tion of  law  is  that  neither  party  was  guilty  of  the  negligence 
or  wrongful  conduct  alleged,  and  such  presumption  must  pre- 
vail until  overcome  by  the  evidence  submitted  to  you.  The 
wrongful  acts  complained  of  in  order  to  enable  the  plaintiff  to 
recover  must  be  the  proximate  cause  of  the  injury.1 

i  Voris,  J.,  in  Quinn  v.  Ewart,  Summit  Co.  Com.  Pleas.  This  is  applicable 
of   course   to  cases  where   there   is  no   such   presumption. 

Sec.  2106.     Proximate  cause  defined  and  explained. 

By  proximate  cause  is  meant  a  cause  from  which  a  man  of 
ordinary  experience  and  sagacity  could  foresee  what  result 
would  likely  follow;  that  the  injury  was  of  such  a  character  as 
might  reasonably  have  been  foreseen  or  expected  as  a  natural 
and  ordinary  result  of  the  acts  or  omission  complained  of.  The 
injury  must  have  been  the  direct  and  not  the  remote  result 
thereof.     In  this  sense  you  will  inquire  into  the  evidence   to 


1904  INSTRUCTIONS  TO  JURY. 

determine  whether  the  defendants  were  guilty  as  charged ; 
whether  the  decedent  was  guilty  of  contributory  negligence  as 
charged.  In  the  light  of  the  evidence,  how  do  you  find  the 
facts  alleged  in  the  plaintiff's  petition  to  be?  How  do  you  find 
the  facts  charged  in  the  answer  to  be?  The  evidence  and  our 
instruction  to  you  should  be  your  sole  guide  in  determining  the 
true  answers  to  these  questions.  You  have  no  right  to  indulge 
in  speculation  or  conjectures  not  supported  by  the  evidence. 
The  plaintiff  can  only  recover  upon  the  particular  acts  com- 
plained of  in  the  petition,  but  it  is  sufficient  if  you  find  any  such 
acts  or  omissions  on  the  part  of  the  defendants  tbat  proximately 
caused  the  injury  complained  of,  if  in  other  respects  your  find- 
ing answers  the  conditions  of  our  instructions  to  you.  Injury 
alone  will  not  support  an  action,  there  must  be  a  concurrence 
of  injury  and  wrong.1 

i  Voris.  J.,    in   Quinn   v.  Ewart,   Summit   Co.   Com.   Pleas.     Sherman    and 
Red.  on  Neg.,  sec.  26. 

Sec.  2107.     Proximate  cause — Another  definition. 

By  this  term  "proximate  cause"  is  meant  the  cause  which 
directly  produced  the  injury.  This  term  is  used  in  contradis- 
tinction to  the  term  "remote  cause."  A  proximate  cause  does 
not.  necessarily  mean  the  cause  nearest  in  point  of  time  or  in 
point  of  distance,  but  it  does  mean  that  cause  without  the 
existence  of  which  the  injury  would  not  have  been  sustained. 
Sometimes  an  intervening  cause  may  occur  between  a  proximate 
cause  and  the  result  which  follows  from  this  proximate  cause. 
If  such  intervening  cause  is  an  independent  one,  and  one  which 
would  not  necessarily  follow  or  result  from  the  proximate  cause 
itself,  tben  this  independent,  intervening  cause  would  be  and 
constitute  a  proximate  cause  in  a  series  of  causes  which  combine 
to  produce  the  injury,  and  if  this  intervening  cause  was  the 
necessary  or  natural  result  of  the  original  eause,  even  though  it 
may  have  been  nearer  the  result  in  point  of  time  than  the  orig- 


NEGLIGENCE GENERAL  RULES.  1905 

inal   cause,  it  would  not  constitute   the   proximate   cause,  but 
would  be  regarded  in  law  as  the  remote  cause  of  the  injury. 

Definitions. — "The  proximate  cause  of  an  injury  is  that  which,  in  natural 
and  coatinuous  sequence,  unbroken  by  any  efficient  intervening 
cause,  produces  the  injury,  and  without  which  the  result  would 
not  have  occurred.  .  .  .  The  remote  cause  is  that  cause  whicli 
some  independent  force  merely  took  advantage  of  to  accomplish 
something  not  the  probable  or  natural  effect  thereof."  Goodlander 
Mill  Co.  v.  Standard  Oil  Co.,  63  Fed.  400,  11  C.  C.  A.  253.  See, 
for  full  treatment  and  copious  notes,  Cooley  on  Torts,   73-86. 

Where  the  carelessness  of  plaintiff  as  well  as  that  of  defendant  con- 
tributed to  the  injury,  the  jury  should  be  instructed  unambigu- 
ously that  the  plaintiff  can  not  recover  if  the  jury  so  find  the  facts. 
Railway  Co.  v.  Krichbaum,  24  O.  S.  119.  See  Cooley  on  Torts, 
816    (679). 

In  cases  of  mutual  negligence,  the  negligence  of  each  is  the  proximate 
cause,  and  neither  can  recover,  6  0.  S.  105,  109,  3  O.  S.  172,  188, 
24  O.  S.  119.  Plaintiff's  negligence  to  bar  recovery  must  be  a 
proximate  cause,  4  0.  S.  474,  3  O.  S.  172. 

Sec.  2108.     Contributory  negligence. 

Contributory  negligence  which  precludes  a  recovery  for  an 
injury  must  be  such  as  co-operates  in  causing  it,  and  without 
which  it  would  not  have  happened.1 

iGregoric  v.  Mining  &  P.  Co.,  52  Colo.  495,  122  Pac.  785,  Am.  Ann. 
Cas.   1913,  E.   1030. 

Sec.  2109.  No  recovery  when  there  is  contributory  negligence. 
Nor  can  the  plaintiff  recover  compensation  for  any  damages 
which  he  might  have  avoided  by  the  use  of  ordinary  care  and 
prudence  under  the  circumstances;  so,  if  the  plaintiff  (or  de- 
cedent) did  not  take  reasonable  care  under  the  circumstances, 
or  if  he  voluntarily  exposed  himself  to  hazards  ho  ought  not  to 
have  encountered  under  the  circumstances  known  to  him,  or 
that  reasonably  ought  to  have  been  known  to  him,  ;ind  he  thereby 
proximately  caused  the  said  injuries,  the  plaintiff  can  not  re- 
cover. All  that  the  law  requires  of  the  injured  party  in  this 
respect  is  that  he  should  act  with  reasonable  care  and  prudence 
under  the  circumstances  known  to  him,  or  that  reasonably  ought 
to  have  been  known  to  him.     That  is,  he  should  act  reasonably, 


1906  INSTRUCTIONS  TO  JURY. 

considering  the  means  of  knowledge  he  had  and  the  circum- 
stances surrounding  him,  taking  him  just  as  you  find  him  to 
have  been,  considering  his  age,  inexperience,  intelligence,  and 
judgment  as  you  find  them  to  be  from  the  evidence.1 

i  Voris,  J.,  in  Quinn  v.  Ewart,  Summit  Co.  Com.  Pleas. 

Contributory  negligence  only  ceases  to  be  a  defense  if  defendant  could 
have  avoided  the  injury  by  ordinary  care,  8  W.  L.  B.  257.  The 
plaintiff's  right  of  recovery  is  not  precluded  in  all  cases  where  he 
omits  to  employ  his  senses  to  discover  and  avoid  injury,  even 
though  the  omission  be  regarded  as  negligence.  It  does  so  only 
when  the  omission  contributes  to  the  injury.  R.  R.  Co.  v.  Whit- 
acre,  35  0.   S.   631;   R.  R.  Co.  v.   Crawford,  24   0.  S.  628. 

Sec.  2110.     Contributory  negligence — Must  be  proximate  cause 
of  injury. 

If  you  find  from  all  the  evidence  in  the  case  that  plaintiff 
was  not  in  the  exercise  of  ordinary  care  at  the  time  of  the 
injury,  and  that  this  absence  of  due  care,  together  with  the 
negligence  of  the  company,  combined  to  cause  the  injury  and 
death  to  him,  then  he  would  be  guilty  of  contributory  negligence 
within  the  meaning  of  the  law,  and  his  administrator  could  not 
recover  [or  the  plaintiff  may  not  recover]. 

The  negligence  of  which  I  have  spoken,  whether  on  the  part 
of  B.  or  the  defendant,  must,  in  the  language  of  the  law,  be 
a  proximate  cause  of  the  injury.  An  act  or  omission  is  the 
proximate  cause  of  an  event  when,  in  the  natural  order  of 
things  and  under  the  circumstances,  it  would  necessarily  pro- 
duce that  event ;  that  is  to  say,  when  it  is  the  first  and  direct 
power  producing  the  result.  If  the  negligence  and  resulting 
damages  are  not  known  by  common  experience,  or  are  not  found 
by  you  to  be  usually  and  naturally  in  sequence,  and  the  dam- 
age does  not,  according  to  the  ordinary  course  of  events,  follow 
from  the  negligence,  then  the  negligence  and  the  damage  are 
not  sufficiently  conjoined — not  sufficiently  linked  together — as 
cause  and  effect  to  sustain  an  action  ff*  the  negligence  be  that  of 
the  defendant,  or  to  bar  an  action  as  contributory  negligence  if 
the  negligence  in  such  case  be  that  of  plaintiff. 


NEGLIGENCE — GENERAL  RULES.  1907 

Hence,  if  you  find  from  the  evidence  that  the  defendant  com- 
pany was  negligent,  but  that  said  negligence  was  not  linked  to 
said  injury  as  cause  to  effect,  then  such  negligence  was  not  a 
proximate  cause  as  before  defined,  and  will  not  sustain  this 
action.  If,  on  the  other  hand,  you  find  that  the  plaintiff  was 
guilty  of  negligence,  and  you  further  find  that  such  negligence 
did  not  contribute  as  a  proximate  cause  to  the  injury,  then  the 
plaintiff  will  not,  for  that  reason,  be  barred  of  a  recovery  in 
this  action.1 

i  W.  T.  Mooney,  J.,  in  Chicago  &  E.  E.  E.  Co.  r.  Eurviance. 

Sec.  2111.    When  plaintiff  must  show  himself  without  fault 
or  to  rebut  inference  of  negligence. 

It  is  not  necessary  in  the  first  instance  that  plaintiff  should 
show  he  was  free  from  blame  and  not  in  fault,  unless  his  own 
evidence  suggests  that  he  was  negligent  and  to  blame  for  the 
injury.  If  contributory  negligence  is  suggested  by  plaintiff's 
own  evidence,  then  the  burden  is  on  him  to  remove  and  dispel 
the  suggestion,  and  show  himself  blameless  to  the  jury.  If  not 
so  suggested  by  plaintiff's  evidence,  then  such  contributory  neg- 
ligence as  will  defeat  a  recovery,  to  be  available,  must  be  shown 
by  defendant.  In  such  case,  the  burden  is  on  the  defendant, 
and  it  must  make  it  appear  to  the  satisfaction  of  the  jury  by  a 
preponderance  of  evidence.1 

*  When  the  case  is  such  as  necessarily  devolves  carefulness  on  the  part 
of  plaintiff,  and  the  testimony  to  support  it  fairly  puts  in  ques- 
tion the  due  exercise  of  care  on  his  part,  the  jury,  in  determining 
the  question  of  contributory  negligence,  should  consider  all  the 
evidence.  Eobinson  v.  Gary,  28  0.  S.  241.  If  plaintiff's  testimony 
raises  a  presumption  of  contributory  negligence,  the  burden  is  upon 
him  to  remove  that  presumption.  E.  E.  Co.  v.  Whitacre,  35  <>.  S. 
627,  630;  Hays  v.  Gallagher,  72  Pa.  St.  140;  Wharton  on  Neg., 
sees.  425,  428,  28  O.  S.  241. 

Sec.  2112.     Burden  of  proving  contributory  negligence. 

The  burden  of  proof  as  to  contributory  negligence  is  upon 
the  defendant,  unless  the  evidence  introduced  on  the  part  of  the 


1908  INSTRUCTIONS  TO  JURY. 

plaintiff  tends  to  show  that  the  plaintiff  was  guilty  of  negli- 
gence, in  which  case  it  would  be  your  duty  to  find  from  a  pre- 
ponderance of  the  evidence  of  the  whole  truth  that  he  was  not 
guilty  of  negligence  that  contributed  to  his  injury  before  he 
would  be  entitled  to  recover.1 

i  The    authorities    upon    the    burden    of    proof    vary    in    different    states, 
bherm.  &  Red.,  sees.   106-7.     See  ante,  No.  401,  note.     See  full  dis- 
cussion  also    in   Booth's   Street  Railways,  sec.  381;   B.  &   0.  R.   R. 
!  Co.  v.  Whitacre,  35  0.  S.  627. 

Sec.  2113.  Contributory  negligence  as  applicable  to  children. 
"In  the  application  of  the  doctrine  of  contributory  negligence 
to  children  for  injuries  occasioned  by  the  wrongful  conduct  or 
negligence  of  others,  their  conduct  should  not  be  judged  by  the 
same  rule  which  governs  that  of  adults ;  and,  while  it  is  their 
duty  to  exercise  ordinary  care  to  avoid  the  injuries  complained 
of,  ordinary  care  for  them  is  that  degree  of  care  which  children 
of  the  same  age  of  ordinary  care  and  prudence  are  accustomed 
to  exercise  under  similar  circumstances. 

' '  Persons  who  employ  children  to  work  with  or  about  danger- 
ous machinery,  or  in  dangerous  places,  should  anticipate  that 
they  will  exercise  only  such  judgment,  discretion,  and  care  as 
is  usual  among  children  of  the  same  age  under  similar  circum- 
stances, and  are  bound  to  use  due  care,  having  regard  to  their 
age  and  inexperience,  to  protect  them  from  the  dangers  incident 
to  the  circumstances  in  which  they  are  placed,  and  as  a  reason- 
able precaution  in  the  exericse  of  such  care  as  ought  reasonably 
to  be  expected  of  them,  guarding  against  and  avoiding  injuries 
arising  therefrom.  But  since  the  enactment  of  April  18,  1890,1 
they  may  not  willfully  employ  or  permit  children  under  the  age 
of  16  years  to  be  placed  in  a  position,  or  t»  be  engaged  in  such 
employment,  that  their  life  or  limb  is  in  danger. 

"Such  employee  who  has  not  been  so  instructed,  and  who, 
while  in  the  discharge  of  his  duty  as  he  understands  it,  suffers 
an  injury  in  consequence  of  the  employer's  negligence,  may 
maintain  an  action  against  the  employer  therefor,  notwithstand- 


NEGLIGENCE— GENERAL  RULES.  1909 

ing  that,  by  reason  of  his  youth  and  inexperience  and  the  failure 
of  the  employer  to  properly  instruct  him,  he  did  some  act,  in 
the  performance  of  his  duty  according  to  the  judgment  and 
knowledge  he  possessed,  which  contributed  to  the  injury,  but 
which  he  did  not  know  and  was  not  advised  would  be  likely  to 
injure  him."2 

But  it  is  for  you  to  determine  from  a  preponderance  of  the 
evidence  whether  the  decedent  was  or  was  not  a  child  under 
the  age  of  16  years;  and  if  you  find  him  to  have  been  under 
that  age,  whether  or  not  the  defendants  willfully  permitted 
his  life  and  limb  to  be  endangered  while  so  employed  by  them, 
or  willfully  permitted  him  to  be  placed  in  such  position,  or  to 
engage  in  such  employment  at  the  time  of  the  injury,  that  his 
life  or  limb  was  endangered;  whether  he  was  properly  in- 
structed; and  whether  or  not  such  willful  and  negligent  con- 
duct, if  any  such  existed,  caused  the  injury  complained  of. 
These  delinquencies  must  have  existed  at  the  time  of  the  injury 
and  be  the  cause  thereof  to  enable  the  plaintiff  to  recover,  if 
they  existed.3 

i  87  0.  L.  161. 

2  Rolling  Mill  v.  Corrigan,  46  O.  S.  283;   Beach  Contrib.  Neg.,  sec.  136. 
s  Voris,  J.,  in  Quinn  v.  Ewart,  Summit  Co.  Com.  Pleas.     See  Sherman  & 
Redf.  on  Neg.,  sees.  70,  73. 

Sec.  2114.     Consent  of  children — Effect. 

While,  in  a  general  way,  it  may  be  said  that  to  the  consenting 
there  can  be  no  damage,  yet  the  consent,  to  avail  as  a  defense, 
must  be  the  consent  of  a  person  capable  of  giving  consent.  Tiny 
must  have  intelligence,  judgment  and  free  will;  not  idiots,  im- 
beciles, insane  or  mere  children.  The  law  holds  that  infants 
in  general  can  not  give  consent,  but  this  holding  can  not  apply 
to  all  infants.  It  is,  after  all,  in  actions  like  this,  a  question 
of  capacity  to  be  determined  by  the  jury  under  the  circum- 
stances of  the  case,  considering  them  ax  children.  In  any  event 
the  consent  must  be  founded  in  an  intelligent  judgment  to  be 
available.     This  legal  disabilty  arises  out  of  the  tender  regard 


1910  "  INSTRUCTIONS  TO  JURY. 

of  the  law  to  the  want  of  understanding  and  inexperience  oi 
children,  and  as  a  shield  to  protect  them  against  those  who  would 
take  advantage  of  their  condition.1 
i  Voris,  J.,   in  Quinn   v.  Ewart,  Summit  Co.  Com.  Pleas. 

Sec.  2115.     Contributory  negligence — Intoxication  as  affecting. 

The  plaintiff  can  not  recover  if  he  was  himself  in  fault  at  the 
time,  which  contributed  to  his  injury,  and  if  you  find  that  he 
was  incapable  of  taking  care  of  himself  by  the  exercise  of  reason- 
able care,  by  reason  of  drink  or  any  other  cause,  then  he  will  not 
be  entitled  to  recover.  The  plaintiff's  claimed  that  intoxication, 
however,  if  proven,  would  not  necessarily  prevent  recovery ;  but  it 
bears  upon  the  question  whether  or  not  he  exercised  reasonable 
and  ordinary  care,  and  if  you  find  that  he  was  intoxicated,  and 
still  find  that  he  exercised  reasonable  and  ordinary  care  to  avoid 
the  injury,  but  further  find  that,  while  he  was  negligent,  such 
negligence  did  not  contribute  to  the  injury,  that  if  the  defendant 
was  guilty  of  negligence,  such  negligence  was  not  the  proximate 
cause  of  his  injury,  the  plaintiff  would  be  entitled  to  your  verdict. 

If  you  find  that  the  plaintiff  was  so  intoxicated  at  the  time 
of  the  accident  as  to  disable  him  from  exercising  ordinary  care, 
but  find  that  at  the  time  of  the  accident  he  was  in  charge  and 
under  the  care  of  his  son,  who  was  at  the  time  capable  of  exer- 
cising the  ordinary  care  of  an  adult,  and  that  he  did  exercise 
ordinary  care  under  the  circumstances,  and  if  you  find  that  the 
son  was  driving  the  vehicle,  and  that  when  approaching  the 
crossing  exercised  ordinary  care,  and  you  further  find  that 
defendant's  agents  in  charge  of  the  train  were  guilty  of  negli- 
gence which  produced  the  injury,  then  your  finding  should  be 
for  the  plaintiff.  On  the  other  hand,  if  the  plaintiff  by  reason 
of  intoxication  contributed  to  the  injury  complained  of  as  a 
proximate  cause  thereof,  that  would  prevent  a  recovery.  This 
is  a  question  of  fact  for  you  to  determine.1 

1  Gillmer,  J.,  in  Flemming  v.  Penn.  R.   P.  Co.,  Trumbull  Co.   Com.  Pleas. 

Intoxication    tends   to    show    contributory    negligence,    and    is   matter    for 

the  jury.     Beach's  Contr.  Neg.,  sec.    197,  citing  Seymour   v.  Lake, 


NEGLIGENCE GENERAL  RULES.  1911 

66  Wis.  651;  Ford  v.  Umatilla  Co.,  15  Ore.  313,  etc.;  Sherman  & 
Redf.  on  Neg.  ( 4th  ed. ) ,  sec.  93. 
Intoxication  will  not  excuse  one  crossing  a  railroad  track  from  the 
exercise  of  such  care  as  is  due  care  from  a  sober  man.  Beach's 
Contrib.  Neg.,  sec.  197;  Yarnall  v.  St.  L.,  etc.,  R.  R.  Co.,  75  Mo. 
575;   Kean  v.  B.  &  0.  R.  R.  Co.,  61  Md.  154. 

Sec.  2116.     Contributory  negligence — Husband  performing  du- 
ties as  such  not  agent  of  wife. 

If  the  deceased  by  his  own  negligence,  or  that  of  her  agent, 
contributed  to  bring  about  her  death,  the  defendant  is  not  liable. 
If  her  husband  acted  as  her  agent  in  the  purchase  of  the  drug, 
then  she  is  bound,  and  such  an  act  would  be  an  act  to  prevent 
a  recovery  in  this  case.  But  a  purchase  made  by  a  husband  for 
his  wife  in  the  discharge  of  his  duty  as  a  husband  does  not 
constitute  him  the  agent  of  his  wife.  But  in  order  to  make  the 
husband  the  agent  of  his  wife,  he  must  by  her  procurement  and 
direction,  and  under  her  authority  and  control,  have  gone  and 
made  the  purchase,  and  if  he  simply  went  in  the  discharge  of 
his  duty  as  a  husband,  he  was  not  her  agent  in  such  a  way  that 
any  carelessness  of  his  could  be  attributed  to  her.  If  he  was 
under  her  direction  and  control  in  such  a  way  as  to  make  him 
her  agent,  then  his  carelessness  is  her  carelessness,  and  if  he 
contributed  by  his  negligence,  the  plaintiff  can  not  recover  here, 
for  the  plaintiff  can  only  recover  because  the  woman,  had  she 
lived,  could  recover."1 

1  From  Davis  v.  Guarnieri,  45  0.  S.  470.  "The  obtaining  by  the  husband 
of  food  or  medicine  for  his  wife,  with  her  knowledge  and  approval, 
does  not  of  itself  constitute  such  husband  the  agent  of  the  wife 
in  such  sense  as  to  charge  her  with  his  negligence.  In  order  in 
make  him  the  agent  of  the  wife  in  such  transaction,  she  must 
have  selected  the  medicine,  directed  that  he  should  purchase  it, 
and  he  must  have  had  nothing  to  do  in  the  matter  except  bj  her 
procurement  and  direction.  What  he  did  in  this  matter  simply 
in  the  discharge  of  his  duty  as  a  husband  was  not  done  as  tie1 
agent  of  his  wife,  and  his  negligence  in  his  duties  as  a  husband 
are  not  chargeable  to  liiR  wife."  Davm  v.  Guarnieri,  !•">  <>■  8,  470. 
See  Booth  on  Street  Railways,  sec.  392. 


1912  INSTRUCTIONS  TO  JURY. 

Sec.  2117.     Imputed  negligence. 

"The  doctrine  of  imputed  negligence  does  not  prevail  in 
Ohio ;  and  if  you  find  that  the  deceased  died  through  the  wrong- 
ful act,  neglect,  or  default  of  the  defendant,  by  himself  or  his 
agent,  then  the  plaintiff  is  not  deprived  of  the  right  of  action 
in  this  case  by  reason  of  contributory  negligence  on  the  part 
of  the  husband  or  anyone  else,  unless  such  person  was  acting 
as  agent  of  the  deceased  at  the  time."1 
i  From  Davis  v.  Guarnieri,  45  0.  S.  470. 

Sec.  2118.     Negligence — Of  parent  not  imputed  to  child. 

"If  it  be  found  that  the  plaintiff  was  fully  capable  of  taking 
reasonable  care  of  herself,  and  was  injured  while  lawfully  riding 
with  her  father  in  his  own  wagon,  then  the  conduct  of  the  father 
in  driving  the  wagon,  any  negligence  on  his  part,  with  which 
the  plaintiff  had  nothing  to  do,  can  not  be  attributed  to  her  in 
that  respect,  even  though  the  father  by  his  negligence  may  have 
so  contributed  to  the  accident  that  he  would  be  barred  from 
recovery  by  his  contributory  negligence,  it  still  will  not  prevent 
the  plaintiff  from  recovering,  unless  she  herself  contributed  to 
the  negligence  which  caused  the  injury."1 

i  From  Street  Railway   Co.  v.  Eadie.  43  0.   S.  91.     See  28  O.   S.   399,  24 
0.  S.  670,  30  0.  S.  451 ;  Booth  on  Street  Railways,  sees.  389,  390. 

Sec.  2119.    Duty  of  employer  to  infant  employee. 

"It  is  the  duty  of  an  infant  employee  to  use  ordinary  care 
and  prudence ;  just  such  care  and  prudence  as  a  boy  of  his  age 
of  ordinary  care  and  prudence  would  use  under  like  or  similar 
circumstances.  The  jury  should  take  into  consideration  his 
age,  the  judgment  and  knowledge  he  possessed.  If  not  under- 
standing all  the  dangers  and  hazards  of  the  situation  in  which 
he  was  placed  by  the  foreman,  and  you  find  it  was  a  dangerous 
and  hazardous  situation  in  which  to  place  a  boy  of  his  age, 
judgment  and  experience,  it  was  the  duty  of  the  foreman  to 
instruct  him  in  respect  thereto,  that  he  might  conduct  himself 


NEGLIGENCE GENERAL  RULES.  1913 

so  as  to  guard  against  such  peril ;  and  if  he  was  injured  by  reason 
of  the  neglect  or  carelessness  of  the  defendant,  and  by  reason  of 
his  youth  and  want  of  judgment  as  to  the  perils  of  his  position, 
did  some  act  in  the  discharge  of  his  duty  as  he  understood  it, 
which  also  contributed  to  the  injury,  and  which  he  did  not  know 
to  be  likely  to  injure  him,  and  had  not  been  properly  advised 
and  instructed  therein  by  the  foreman,  he  is  entitled  to  re- 
cover."1 
i  From  Rolling  Mill  v.  Corrigan,  46  0.  S.  283. 

Sec.  2120.     The  last  clear  chance  doctrine. 

Where  the  plaintiff,  by  his  own  negligence,  has  placed  himself 
iu  a  dangerous  position,  where  injury  is  likely  to  result,  and  the 
servants  and  employees  of  the  defendant  company  learned  and 
knew  of  plaintiff's  danger  in  tyne  to  have  avoided  injuring  him 
by  exercising  ordinary  and  reasonable  care,  and  it  failed  after 
discovering  such  peril   [or  if,  after  the  defendant  ought  under 
the  circumstances  to  have  become  aware  of  plaintiff's  danger, 
it  failed]   to  exercise  reasonable  care  to  avoid  the  injury,  by 
slackening  speed  of  the  train  [or  car],  or  in  stopping  the  train 
[or  car]   or  to  give  signals  or  warnings;    and  this  is  true,  and 
the  rule  is  to  be  applied  even  though  the  plaintiff  negligently 
remained  in  his  perilous  position  down  to  the  time  of  the  acci- 
dent.    The  principle  of  liability  placed  upon  the  one  discover- 
ing the  peril  of  another,  though  negligently  caused  by  himself, 
is  that  the  act  of  the  one  discovering  such  peril,  and  in  failing 
to  use  reasonable  care  to  avoid  injury  to  such  person,  introduces 
a  new  and  independent  act  of  negligence,  rendering  such  person, 
or  the  defendant,  liable  because  such  new  and  independent  act 
of  negligence  becomes  the  direct   and    proximate  cause  of  the 
injury.1 

i  Railroad  v.  Kassen,  49  0.  S.  230;  Bruggeman  v.  Railroad,  147  Iowa,  187, 
123  N.  W.  1007,  Ann.  Cas.  1012.  B.  876.  In  the  latter  case  it  was 
specially  stated  thai  plaintiff's  negligence  need  not  have  ceased  be 
fore  the  accident,  in  order  to  recover  under  the  doctrine  ol  last. 
chance.  In  the  Kassen  case,  however,  tin'  party  was  unable  to 
remove  from  the  track  so  that  his  negligence  could  not  be  said  t«» 


1914  INSTRUCTIONS  TO  JURY. 

be  continuing.  In  the  adoption  of  the  rule  of  concurrent  negligence 
in  Drown  v.  Traction  Co.,  76  O.  S.  234,  it  is  specifically  ruled  that 
the  doctrine  of  last  chance  as  formulated  in  Railroad  Co.  v.  Kassen, 
49  0.  S.  230,  does  not  apply  where  the  plaintiff  has  been  negligent, 
and  his  negligence  continues,  and,  concurrently  with  the  negligence 
of  defendant,  directly  contributes  to  produce  the  injury.  It  applies 
only  where  there  is  negligence  of  the  defendant  subsequent  to, 
and  not  contemporaneous  with,  negligence  by  the  plaintiff  so  that 
the  negligence  of  defendant  is  clearly  the  proximate  cause  of  the 
injury,  and  that  of  the  plaintiff  the  remote  cause.  See  C.  C.  & 
St.  L.  Ry.  v.  Gahan,  1  C.  C.  (N.S.)  205;  L.  S.  &  M.  S.  Ry.  v. 
Callahan,  2  C.  C.    (N.S.)    326. 


Sec.  2121.     Concurrent  negligence. 

The  jury  is  instructed  that  if  it  appears  from  the  evidence 
that  the  plaintiff  and  the  defendant  were  both  negligent,  and 
that  the  negligence  of  both  directly  contributed  to  cause  the 
injury,  that  the  negligent  acts  of  both  plaintiff  and  defendant 
combined  so  as  to  directly  cause  the  injury  complained  of  by 
plaintiff  in  such  way  that  it  is  impossible  for  the  jury  to  appor- 
tion the  contributing  part  of  each  party  to  the  injury,  as  well  as 
the  responsibility  therefor,  then  plaintiff  may  not  recover.  In 
other  words,  if  it  should  appear  from  the  evidence  that  the 
negligent  conduct  of  both  plaintiff  and  defendant  was  active, 
from  the  beginning  of  the  peril  or  danger  to  plaintiff,  and  that 
the  negligence  of  each  was  contemporaneous  and  continuing  in 
point  of  time  until  after  the  moment  of  the  accident  or  injury, 
so  that  the  jury  are  unable  to  consider  the  conduct  of  either 
party,  apart  from  that  of  the  other,  and  determine  from  the 
evidence  whether  the  acts  of  the  one  were  the  proximate  or 
immediate  cause  of  the  injury,  while  that  of  the  other  is 
remote,  the  plaintiff  must  fail,  and  the  verdict  should  be  for  the 
defendant'.1 

i  This  is  a  charge  suggested  by  Drown  v.  Traction  Co.,  76  O.  S.  234,  fol- 
lowing that  case   in  part  and  adding  in  part. 


NEGLIGENCE GENERAL  RULES.  1915 

Sec.  2122.  When  negligence  of  plaintiff  not  continuing,  but 
that  of  defendant  is  continuing  and  proxi- 
mate, while  that  of  plaintiff  is  remote. 

But  if  the  negligence  of  the  plaintiff  merely  places  himself 
in  a  place  of  danger  doing  nothing  more,  and  he  does  not  actively 
continue  until  the  moment  of  the  injury,  and  it  appears  from 
the  evidence  that  the  defendant  either  knew  of  his  danger,  or 
if  by  the  exercise  of  reasonable  and  ordinary  diligence  and  care, 
defendant  could  have  learned  and  known  of  the  peril  and  danger 
to  plaintiff,  and  in  either  case  plaintiff  does  not  continue  actively 
and  concurrently  negligent  with  defendant,  but  if  it  appears 
that  the  defendant  notwithstanding  the  negligence  it  appears 
from  the  evidence  that  the  defendant  by  the  exercise  of  ordinary 
and  reasonable  care  could  have  avoided  the  injury,  and  (bis)  or 
(its)  neglect  to  do  so  was  the  proximate  cause  of  the  injury 
to  plaintiff,  while  the  negligence  of  the  plaintiff  was  remote, 
your  verdict  should  be  for  the  plaintiff.1 

i  This  is  a  charge  suggested  to  meet  a  phase  of  a  question  suggested  in 
Drown  v.  Traction  Co.,  76  0.  S.  on  p.  248. 

Sec  2123.  Injury  to  passenger  by  derailment  res  ipsa  loquitur 
— Establishing  prima  facie  case. 

The  rule  is  that  where  a  plaintiff  has  shown  that  he  is  a  pas- 
senger of  a  carrier;  that  while  such  passenger,  the  car  of  the 
carrier  upon  which  he  was  riding  was  derailed,  and  that  he 
thereby  sustained  injury,  the  burden  is  upon  the  defendant  to 
show  that  it  was  without  its  fault.  Plaintiff  having  shown  such 
a  state  of  things  as  give  rise  to  a  presumption  of  negligence 
against  the  railroad  company,  this  is  available  to  plaintiff  until 
negatived  and  overthrown.  Such  presumption  can  only  be  over- 
thrown by  proof  that  the  casualty  resulted  from  inevitable  or 
unavoidable  accident,  against  which  no  human  skill,  prudence, 
or  foresight,  as  usually  and  practically  applied  to  careful  rail- 
road management,  could  provide.1 

» Louisville,  etc.,  R.  Co.  v.  Jones,  108  I  ml.  558;  Wash.  &  7a.  R.  R.  Co. 
v.  Bouknight,  113  Va.  6!)6,  75  N.  E.  1032,  Am.  Ann.  Cas.  1913, 
E.  546. 


1916  INSTRUCTIONS  TO  JURY. 

Sec.  2124.     Burden  of  proof  when  injury  caused  by  res  ipsa 
loquitur. 

Where  it  is  shown  that  a  person  has  sustained  an  injury, 
under  circumstances  where  the  maxim  res  ipsa  loquitur  applies, 
the  plaintiff  is  not  required,  in  the  first  instance,  to  prove  any 
particular  defect  by  evidence,  other  than  by  the  prima  facie 
presumption  which  the  law  creates  in  his  favor.  In  other  words, 
the  burden  of  proof  is  upon  plaintiff  to  prove  merely  how  the 
injury  ocurred,  which  constitutes  in  such  case  a  prima  facie 
case,  although  the  facts  with  respect  to  the  defects  are  necessarily 
alleged  with  particularity  in  the  petition.  This  satisfies  the  rule 
of  the  burden  of  proof,  which  technically  is  the  rule  of  pro- 
cedure of  going  forward  with  the  evidence.  So  in  an  action  by 
a  passenger  against  a  carrier  for  personal  injuries  received  by 
the  derailment  of  the  car  in  which  the  plaintiff  was  riding,  the 
plaintiff  makes  out  a  prima  facie  case  by  proving  the  happening 
of  the  accident  and  his  injury,  and  thereby  casts  upon  the  de- 
fendant the  burden  of  rebuttal,  and  of  explaining  the  circum- 
stances of  the  accident  so  as  to  relieve  itself  from  liability. 

But  if  defendant  introduces  countervailing  evidence  in  re- 
buttal of  such  prima  facie  case,  the  burden  is  on  the  whole  case 
on  the  plaintiff  to  prove  by  a  preponderance  of  the  evidence  that 
the  injury  was  caused  by  the  negligence  of  the  defendant.1 

iWash.  &  Va.  Ry.  r.  Bouknight,  113  Va.  G96.  7.1  X.  E.  1032,  Am.  Ann. 
Cas.  1913,  E.  546.  In  the  case  cited  it  is  held  that  it  is  for  the 
jnry  to  determine  whether  defendant  has  shown  by  a  preponderance 
of  the  evidence  that  it  was  f ree  f rom  negligence.  But  under  the 
Ohio  decisions  the  burden  on  the  whole  case  remains  on  plaintiff 
though  his  evidence  in  the  first  instance  makes  out  a  prima  facie 
case.     See  ante,  sees.  529,  530. 

Sec.  2125.     Sudden  peril — Conduct  of  person  placed  in. 

You  are  instructed  that  the  law  is  that  where  a  traveler, 
without  any  fault  on  his  part,  is  placed  in  a  position  of  immi- 
nent peril  at  a  crossing,  he  will  not  be  held  guilty  of  such  negli- 
gence as  will  defeat  his  recovery  if  he  does  not  select  the  very 
wisest  course;   and  an  honest  mistake  of  judgment  in  such  a 


NEGLIGENCE GENERAL  RULES.  1917 

sudden  emergency  will  not  of  itself  constitute  contributory 
negligence  on  his  part,  although  it  may  appear  that  another 
course  would  have  been  better  and  safer ;  and  this  rule  applies 
where  the  person  is  placed  in  such  perilous  position  by  the 
negligence  of  a  railroad  company  in  failing  to  give  the  proper 
signals.  In  such  emergency  of  sudden  peril,  all  that  is  required 
of  such  traveler  is  that  he  act  with  ordinary  care  under  the 
circumstances.  It  is  for  the  jury  to  determine  whether  plaintiff 
was  placed  in  a  position  of  peril  through  the  neglect  of  the 
defendant,  and,  if  so,  whether  plaintiff  acted  negligently  or 
with  ordinary  care,  etc.1 

i  Dickinson  v.  Erie  R.  Co.,   81  X.  J.  L.  464,  37   L.   R.  A.    (X.S.)    150,  81 
Atl.   104. 

Sec.  2126.    Rescuing  one  from  danger — Injury  while  attempt- 
ing to  rescue — Contributory  negligence. 

"To  hold  the  railroad  company  responsible  in  damages  for 
injury  to  a  person  who  is  struck  by  an  engine  and  injured  Avhile 
in  the  act  of  crossing  the  track  and  rescuing  a  little  child  from 
danger  and  saving  its  life,  it  must  be  shown  (1)  that  the  child 
was  in  danger  of  being  run  over  and  injured  by  an  approaching 
engine,  and  that  such  danger  was  caused  or  created  by  the  negli- 
gence of  the  railroad  company;  and  (2)  that  in  making  the 
effort  to  rescue  the  child  the  plaintiff  was  not  guilty  of  contribu- 
tory negligence.  These  are  questions  of  fact  which  it  will  be 
your  duty  to  determine  from  the  evidence. 

"If  you  find  that  the  peril  to  which  the  child  was  exposed 
was  caused  by  such  negligence  of  the  company,  you  will  then 
inquire  whether  the  plaintiff,  in  passing  across  the  track  and 
attempting  to  rescue  the  child,  was  guilty  of  contributory  negli- 
gence. The  law  will  not  impute  negligence  to  an  effort  to  save 
human  life  unless  made  under  such  circumstances  as  to  consti- 
tute rashness  in  the  judgment  of  prudenl  persons. 

"If  he  believed,  and  had  good  reason  to  believe,  thai  he  could 
save  the  life  of  the  child  without  serious  injury  to  himself,  tin- 
law  will  not  impute  to  him  blame  for  making  the  effort."1 


1918  INSTRUCTIONS  TO  JURY. 

i  Penna.  Company  v.  Langendorf,  48  0.  S.  316.  In  the  opinion  in  the 
above  case,  Bradbury,  J.,  says :  "The  attendant  circumstances  must 
be  regarded;  the  alarm,  the  excitement  and  confusion  usually 
present  on  such  occasion,  the  uncertainty  as  to  the  proper  move 
to  be  made,  the  promptness  required,  and  the  liability  to  mistake 
as  to  what  is  best  to  be  done,  suggest  that  much  latitude  of 
judgment  should  be  allowed  to  those  who  are  thus  forced  by  the 
strongest  dictates  of  humanity  to  decide  and  act  in  sudden  emerg- 
encies. And  the  doctrine  that  one,  who,  under  these  or  similar 
circumstances,  springs  to  the  rescue  of  another,  thereby  encounter- 
ing even  greater  danger  to  himself,  is  guilty  of  negligence  per  se, 
is  neither  supported  by  principle  nor  authority." 


Sec.  2127.  Law  designs  to  hold  the  one  whose  conduct  causes 
injury,  whether  plaintiff  or  defendant.  It  is 
the  nature  of  man  to  protect  himself,  and  this 
is  the  measure  of  duty  in  law. 

In  cases  of  negligence  the  law  designs  that  the  one  whose 
conduct  causes  the  injury  shall  be  held  responsible  for  the  con- 
sequences thereof.  If  the  conduct  of  the  defendant,  measured 
by  the  tests  of  law,  is  the  one  that  is  responsible,  then,  of  course, 
the  judgment  must  go  against  it.  If  the  conduct  of  the  plaintiff 
himself  was  the  cause  of  the  injury,  then,  of  course,  he  has  no 
right  to  recover. 

The  nature  of  human  rights  and  justice  suggests  this  test  of 
right  of  recovery  and  of  defense.  It  is  natural  to  hold  one 
responsible  for  the  natural  consequences  of  his  own  act,  no 
matter  what  the  circumstances  may  be.  However,  anyone  might 
feel  that  a  result  might  be  otherwise,  the  law  can  not  rest  upon 
any  other  basis  whatever  than  the  one  test  of  who  was  at  fault. 

It  is  a  part  of  the  very  nature  of  man  to  take  such  precautions 
as  are  reasonably  calculated  to  protect  himself;  and  hence  the 
measure  of  duty  which  the  law  imposes  upon  him  and  exacts 
of  him  is  that  he  shall  use  such  care  for  his  own  protection  and 
safety  as  ordinarily  prudent  persons  would  have  done  under 
the  same  circumstances.  If  he  fails  to  do  this,  his  act  will 
constitute  negligence.  And  if  his  acts  constitute  and  are  the 
efficient  cause  of  the  injury,  then,  of  course,  he  can  not  recover. 


NEGLIGENCE GENERAL  RULES.  1919 

On  the  other  hand,  human  rights  and  the  law  requires  that 
every  person  shall  observe  such  care  as  may  be  reasonably  cal- 
culated to  avoid  or  prevent  injury  to  another  person  who  is 
himself  in  the  due,  proper  and  ordinary  exercise  of  care  for 
his  own  protection.  Hence,  the  measure  of  duty  required  in 
such  case  is  the  observance  of  ordinary  care  to  avoid  and  pre- 
vent injury  to  such  other  person. 

A  violation  of  this  duty  resulting  in  the  direct  cause  of  the 
injury  constitutes  negligence.  This  was  the  obligation  resting 
upon  the  defendant  in  this  case.  And  while  a  corporation  is 
an  artificial  body  and,  as  they  sometimes  say  in  argument  to  a 
jury  that  it  has  no  soul,  has  no  conscience,  etc.,  nevertheless  we 
must  act  upon  the  same  presumptions  and  the  same  rules  of  law 
with  respect  to  those  persons  who  are  in  charge  of  its  affairs. 
It  is  human  nature  for  anyone  to  not  wish  to  injure  another 
intentionally  or  carelessly,  and  it  must  appear,  therefore,  that 
they  have  thoughtlessly  or  carelessly  neglected  to  do  something 
that  was  reasonably  calculated  to  protect  another  person  and 
to  prevent  injuring  him,  in  order  to  make  them  liable. 


CHAPTER   CXXII. 
NEGLIGENCE— MISCELLANEOUS  CASES. 


SEC. 

2128.  Injury   from   defective  gun. 

2129.  Charge    that   gun    was    negli- 

gently     carried,      thus 
causing   death. 

2130.  Liability    of    owner    of    race- 

track     for  injury      to 

driver     from  defect     in 
track. 

2131.  Same — Negligence  of    defend- 

ant     must      proximately 
cause   injury. 

2132.  Same — Diligence    required    of 

plaintiff. 

21.*!.'!.  Liability  of  county  for  injury 
by  mob. 

2134.  Injury  from  natural  gas 
explosion  —  Independent 
contractor — Kule  of  re- 
spondeat superior  not 
applicable. 

'2\ 35.  Same — Injury  from  failure  to 
close  and  calk  pipes. 

2136.  Injury  from  explosion  of 
boiler. 


2137.  Collision    between    street    car 

and  steam  railway  en- 
gine at  crossing — Action 
for  damage  to  street  car. 

1.  Duty  of  each  party. 

2.  Ordinances   as  to  speed. 

3.  Failure   to   sound    whistle. 

4.  Gateman — Open     gate     an 

invitation  to  proceed. 
Did  not  absolve  driver 
from  exercising  due  care. 

2138.  Injury  to  passenger  from  col- 

lision between  cars  on 
scenic  railway  in  public 
park. 

2139.  Traction    engine    in    highway 

1  a  w  f  u  1 — No  liability 
from  ordinary  use — Not 
bound  to  be  on  lookout 
for  frightened  horses  in 
field — Owner  or  operator 
liable  for  wanton  or  un- 
'necessary  sounding 
whistle. 


Sec.  2128.     Injui7  from  defective  gun. 

The  action  from  which  the  following  is  taken  was  one  for 
negligence  for  wrongful  death  caused  by  a  defective  gun,  which, 
on  account  of  the  defect  therein,  discharged  while  in  the  hands 
of  the  defendant,  killing  the  deceased  who  was  a  little  in  advance 
of  the  defendant. 

In  your  investigation  of  matters  which  are  here  submitted  to 

you,  you  will  first  proceed  to  inquire  and  determine  whether  or 

not  this  gun  was  defective.     If  you  find  that  it  was  not,  upon 

this  branch  of  the  case  the  defendant  will  be  entitled  to  a  find- 

1920 


NEGLIGENCE MISCELLANEOUS   CASES.  1921 

ing  in  his  favor.  If  you  find  that  it  was  thus  defective,  then 
you  are  to  inquire  and  ascertain  whether  or  not  the  defendant 
had  knowledge  of  its  defective  condition ;  or  if  he  had  not  actual 
knowledge,  would  he  by  the  exercise  of  ordinary  care  have  known 
of  this  defective  condition?  If  you  find  that  he  neither  had 
knowledge,  nor  by  the  exercise  of  such  ordinary  care  would  not 
have  known  of  the  defects  claimed  on  the  part  of  the  plaintiff 
to  exist  in  this  gun,  then  upon  the  question  as  to  the  defective 
gun  alone  being  the  cause  of  the  accident,  the  defendant  would 
be  entitled  to  a  finding  in  his  favor;  if  on  the  other  hand  yo 
find  that  this  gun  was  defective  in  the  particulars  complained 
of,  and  that  the  defendant  knew  of  this  defect,  or  by  exercising 
ordinary  care  would  have  known  of  the  defect,  then  upon  this 
branch  of  the  case  the  plaintiff  would  be  entitled  to  a  finding 
in  her  favor.1 

1  Johnston,  J.,  in  Lechleitner  v.  King,  Trumbull  Co.  Com.  Pleas. 

Sec.  2129.     Charge  that  gun  was  negligently  carried,  thus  caus- 
ing death. 

It  was  the  duty  of  the  defendant  in  carrying  the  gun  to  exer- 
cise ordinary  care  for  the  safety  of  the  deceased;  and  if  his 
failure  to  exercise  such  care  was  the  proximate  cause  of  the 
injury  resulting  in  the  death  of  the  deceased,  then  the  plaintiff 
will  be  entitled  to  recover  in  this  case,  provided  you  find  that 
the  deceased  himself  was  in  the  exercise  of  ordinary  care  at  that 
time.  It  was  the  duty  of  the  deceased  to  exercise  ordinary  care 
for  his  own  safety,  and  if  you  find  that  he  failed  to  exercise 
such  care,  and  that  his  failure  to  thus  exercise  such  care  con- 
tributed to  produce  or  cause  the  injury  resulting  in  his  death, 
then  the  plaintiff  would  not  be  entitled  to  recover  in  this  action.1 
i  Johnston,  J.,  in  Lechleitner  v.  King,  Trumbull  Co.  Com.  Pleas. 

Sec.  2130.     Liability  of  owner  of  racetrack  for  injury  to  driver 
from  defect  in  track. 
A  defendant,   by  advertising  a  fair  and  horseraces  to  take 
place  on  his  racetrack,  and  offering  premiums  to  winners  of  such 


1922  INSTRUCTIONS  TO  JURY. 

races,  invited  those  persons  desiring  to  compete  for  such  pre- 
miums to  enter  their  horses  in  such  races  and  to  employ  persons 
to  ride  their  horses  in  such  races ;  and  by  that  action  on  his  part 
a  defendant  impliedly  warranted  to  all  such  persons  and  riders 
that  his  track  was  reasonably  well  constructed  for  the  purpose 
for  which  it  was  to  be  used,  and  that  ordinary  care  had  been 
used  by  him  to  protect  and  guard  it  against  danger  to  those 
engaged  in  riding  horses  in  said  race. 

And  the  plaintiff,  if  he  had  no  knowledge  to  the  contrary, 
might  rely  upon  such  warrant.  And  the  defendant  will  be 
charged  in  law  with  a  knowledge  of  the  existence  of  any  and  all 
defects  which  were  open  to  inspection,  and  which  might  have 
been  discovered  by  a  man  of  ordinary  prudence  and  care.  He 
was  required  to  provide  the  track  with  such  appliances  as  ordi- 
nary care  and  prudence  suggested  to  avert  danger  and  secure 
a  reasonable  safety  to  others  coming  upon  or  using  said  track  at 
his  invitation  or  request. 

Therefore,  if  leaving  the  bank  along  the  defendant's  track, 
at  the  point  where  the  accident  happened,  without  any  protec- 
tion or  guard,  rendered  it  unsafe  to  riders  and  to  racehors  3 
over  said  track  at  that  point,  and  unreasonably  exposed  said 
riders  to  danger  of  accident  by  reason  of  such  condition  of  the 
bank,  and  if  ordinary  care,  that  is,  such  care  as  prudent  men 
ordinarily  employ  in  similar  matters,  required  that  the  defend- 
ant should  have  provided  some  means  by  fencing  along  or  other- 
wise guarding  said  point  to  prevent  accident  or  injury,  then  his 
omission  to  provide  some  such  means  would  be  negligence  on  the 
part  of  the  defendant.1 
i  Newby,  J.,  in  Palen  v.  Thomas,  Highland  Co.  Com.  Plea9. 

Sec.  2131.  Same — Negligence  of  defendant  must  proximately 
cause  injury. 
In  order  that  the  defendant's  negligence  may  be  said  to  be  the 
proximate  cause  of  the  injury,  the  plaintiff  is  required  to  make  it 
appear,  by  a  preponderance  of  the  evidence,  that  had  the  defend- 
ant exercised  ordinary  care  in  the  construction  and  guarding  of 


NEGLIGENCE — MISCELLANEOUS   CASES.  1923 

the  track  the  accident  would  not  have  happened,  and  that  the 
injury  inflicted  was  the  result  of  the  defendant's  carelessness 
in  not  guarding  the  defect  complained  of,  and  was  an  injury 
such  as  might  have  been  foreseen  and  reasonably  anticipated  as 
likely  to  result  from  such  carelessness.  Therefore,  if  the  horse 
Avhich  plaintiff  was  riding  did  not  stumble  against  the  bank,  but 
was  tipped  or  knocked  down  by  another  horse  in  the  race,  then 
the  plaintiff  can  not  recover,  although  the  defendant  may  have 
been  negligent  in  the  manner  above  stated.  The  defendant  was 
not  the  insurer  of  the  plaintiff's  safety,  nor  is  he  responsible  for 
the  negligence  of  other  riders  with  the  plaintiff  in  the  race.1 
i  Xewby,  J.,  in  Palen  v.  Thomas,  Highland  Co.  Com.  Pleas. 

Sec.  2132.     Same — Diligence  required  of  plaintff. 

Although  the  defendant  may  have  been  guilty  of  negligence, 
still  the  plaintiff  can  not  recover  if  he  knew  of,  or  had  reason- 
able means  of  ascertaining,  the  defect  complained  of.  The 
plaintiff  Avas  not  allowed  to  shut  his  eyes  to  the  circumstances 
and  conditions  surrounding  him.  But  he  will  be  charged  with 
knowing  whatever  he  would  have  discovered,  as  to  the  condi- 
tion  of  the  track,  had  he  employed  ordinary  prudence  and  cau- 
tion for  that  purpose. 

The  degree  of  diligence  and  care  which  the  law  required  the 
plaintiff  to  exercise  was  such  as  one  of  his  age  and  experience 
would  ordinarily  exercise  under  the  circumstances,  to  look  for 
and  ascertain  the  dangers  incident  to  his  employment.  Ami 
if  the  plaintiff  saw,  or  by  the  exercise  of  such  diligence  could 
have  discovered,  the  unprotected  and  exposed  condition  of  the 
track  before  he  was  injured  in  it,  and  have  avoided  the  injury, 
it  was  his  duty  to  quit  the  employment.  If  lie  continued  in  the 
employment  after  knowing  or  being  thus  charged  with  a  knowl- 
edge of  the  danger,  he  will  be  held  t<>  have  assumed  all  the  risk 
of  such  danger,  and  in  such  case  he  can  no1  recover,  although 
the  defpndant  may  have  been  negligenl  also.1 
i  Newby,  J.,  in  Palen  v.  Thomas,  Highland  Co.  Com.   Pleas. 


1924:  INSTRUCTIONS  TO  JURY. 

Sec.  2133.     Liability  of  county  for  injury  by  a  mob. 

The  statutes  of  this  state  declare,  in  substance,  that  any  collec- 
tion of  individuals  assembled  for  any  unlawful  purpose,  intend- 
ing to  do  damage  or  injury  to  anyone,  or  pretending  to  exercise 
cerrectional  power  over  other  persons  by  violence  and  without 
authority  of  law,  shall,  for  the  purposes  of  the  act,  be  regarded 
as  a  mob.  The  act  also  provides  that  any  act  of  violence 
exercised  by  them  upon  the  body  of  any  person  shall  constitute  a 
lynching.  Thus  we  have  a  definition,  a  statutory  definition,  of  a 
mob  and  of  a  lynching,  to  control  us  in  this  case. 

The  statutes  further  declare  that  any  person  assaulted  by  a 
mob  aud  suffering  a  lynching  at  their  hands  shall  be  entitled  to 
recover  from  the  county  in  which  the  assault  is  made  any  sum 

not  to  exceed  $ . 

The  suit  in  question  is  planted  under  these  statutes. 
The  court  instructs  you  that  before  the  plaintiff  is  entitled  to 
recover  a  verdict  at  your  hands,  there  are  certain  material  allega- 
tions in  the  petition  which  are  controverted  by  the  answer,  that 
the  plaintiff  must  prove  by  a  preponderate  of  the  evidence. 
These  material  allegations  are  these: 

First:  That  the  plaintiff  was  assaulted  by  a  mob,  defining  a 
mob  as  defined  by  the  statutes,  that  is,  by  a  collection  of 
individuals  assembled  for  an  unlawful  purpose,  intending  to  do 
damage  or  injury  to  any  one,  or  pretending  to  exercise  correc- 
tional power  over  other  persons  by  violence,  and  without 
authority  of  law. 

Second:  That  the  plaintiff  suffered  a  lynching  at  the  hands 
of  such  mob ;  that  is,  that  the  mob  exercised  some  act  of  violence 
upon  the  body  of  the  plaintiff ;  and,  as  I  have  heretofore  said  to 
you,  a  lynching  consists  in  an  act  of  violence  exercised  by  a  mob 
upon  the  body  of  any  person. 

Third :  That  the  alleged  assault  and  lynching  at  the  hands  of 
said  mob  occurred  in  this  country  about  the  time  alleged  in  the 
petition.     The  exact  time  is  not  important. 

If  these  three  essential  elements  are  proved  by  a  preponder- 
ance of  the  evidence,  the  plaintiff  is  entitled  to  a  verdict ;  but  if 


NEGLIGENCE — MISCELLANEOUS   CASES.  1925 

the  plaintiff  has  failed  to  so  prove  any  one  or  more  of  said 
elements,  he  is  not  entitled  to  a  verdict,  and  the  verdict  should  be 
for  the  defendant. 

By  a  preponderance  of  the  evidence  is  meant  the  greater 
weight  of  the  evidence. 

The  court  further  instructs  you  that  while  it  is  essential 
that  the  alleged  assault,  if  it  occurred,  be  made  by  a  mob,  yet, 
if  there  was  a  collection  of  individuals  assembled  at  or  near  the 

corner  of street  and  L.  avenue  for  the  unlawful  purpose 

and  intention  of  damaging  or  injuring  anyone,  or  of  exercising 
correctional  power  over  others  by  violence  and  without  authority 
of  law,  and  if  in  furtherance  of  the  unlawful  purpose  on  the  part 
of  such  mob,  any  one  of  said  mob  actually  made  the  assault  upon 
the  plaintiff,  it  is  a  sufficient  assault  by  the  mob.     *     *     * 

In  like  manner,  if  a  mob  had  assembled  at  or  near  the  corner 

of and  L .  Ave.,  as  alleged,  with  the  unlawful  purpose 

and  intent  of  exercising  acts  of  violence  upon  the  body  of 
any  person,  and  one  of  their  number  at  the  time  and  place  of 
the  assemblage,  in  furtherance  of  their  common  design,  exercised 
acts  of  violence  on  the  body  of  the  plaintiff  by  striking  him  on 
the  legs  as  alleged,  it  constitutes  a  lynching  by  such  mob. 

The  Court  further  instructs  you  that  to  constitute  a  mob,  it 
is  essential  to  prove  that  the  collection  of  individuals  was  as- 
sembled for  an  unlawful  purpose,  as  heretofore  stated,  or  being 
assembled  for  a  lawful  purpose,  while  so  assembled,  determined 
among  themselves  to  do  some  unlawful  acts. 

Now,  purpose  or  intent  are  operations  of  the  mind,  and  are 
not  usually  proved  by  direct  or  positive  evidence.  Persons  do 
not  usually  declare  that  they  have  assembled  or  gathered  to- 
gether for  unlawful  purposes,  so  that  intent  and  purpose  are 
usually  proved  by  indirect  or  circumstantial  evidence. 

You  will,  therefore,  in  determining  whether  the  assemblage 
was  gathered  for  an  unlawful  purpose,  or,  after  being  gathered, 
determined  to  do  an  unlawful  act,  perform  some  unlawful  act, 
consider  the  acts,  conduct  and  declarations  of  the  persons  whose 
intent  is  sought  to  be  proved,  as  reflecting  upon  the  purpose  and 


1926  INSTRUCTIONS  TO  JURY. 

intent  of  the  persons  collected  together,  if  there  were  such  per- 
sons, together  with  all  the  other  facts  and  circumstances  sur- 
rounding them,  prior  to  and  at  the  time  and  subsequent  to  the 
alleged  assault,  if  it  occurred,  and  determine  whether  the  col- 
lection of  individuals,  if  assembled,  as  alleged,  were  present  with 
an  unlawful  purpose  or  intent  either  to  damage  or  injure  any- 
one, or  to  exercise  correctional  power  over  others  with  violence 
and  without  lawful  authority. 

If  the  plaintiff  was  struck  Dy  a  stone,  as  alleged,  and  you 
should  conclude  that  the  person  who  struck  him  was  not  a 
member  of  a  mob,  as  I  have  heretofore  defined  it  to  you,  but 
acted  independently  of  a  mob,  then  the  plaintiff  can  not  recover 
in  this  case ;  for  the  plaintiff  recovers  under  the  statutes,  if  at 
all,  for  mob  violence  upon  him,  by  some  one  of  the  mob  who  may 
have  attacked  him  or  assaulted  him  with  a  stone  or  other  weapon, 
as  the  case  might  be,  and  he  can  not  recover  if  it  was  some  inde- 
pendent act  of  some  person  who  was  not  acting  in  conjunction 
with  the  mob. 

Gentlemen,  the  Court  further  instructs  you  that  if  there  was 
a  collection  of  persons  assembled  as  set  forth  in  the  petition, 
for  an  unlawful  purpose,  either  intending  to  damage  or  injure 
others,  or  to  exercise  correctional  powers  over  others  by  violence 
and  without  authority  of  law,  even  though  the  collection  of  per- 
sons did  not  specifically  intend  to  injure  this  plaintiff,  if  such  a 
collection  of  persons  did  injure  this  plaintiff,  the  defendant  is 
liable,  if  the  mob  or  collection  of  persons  had  the  general  intent 
to  injure  persons  in  that  immediate  locality.1 
i  Hoover  v.  Gibson,  Franklin  Co.  Com.  Pleas,  Rogers,  J. 

Sec.  2134.  Injury  from  natural  gas  explosion — Independent 
contractor — Rule  of  respondeat  superior  not 
applicable. 

The  liability  of  one  person  for  damages  arising  from  the  neg- 
ligence of  another,  or  the  principle  of  respondeat  superior,  is 
confined  in  its  application  to  the  relation  of  master  and  servant, 
or  principal  and  agent,  and  does  not  extend  to  cases  of  inde- 


NEGLIGENCE MISCELLANEOUS   CASES.  1927 

pendent  contracts  not  creating  those  relations,  and  where  the 
employer  does  not  retain  control  over  the  mode  and  manner  of 
the  performance  of  the  work  under  the  contract. 

But  where  the  employer  retains  control  and  direction  over  the 
mode  and  manner  of  doing  the  work,  and  an  injury  results  from 
the  negligence  or  misconduct  of  the  contractor,  or  his  servant 
or  agent,  the  employer  is  placed  under  a  liability  equal  and 
similar  to  that  which  exists  in  the  ordinary  case  of  principal 
and  agent. 

Although  the  defendant  is  not  liable  for  the  negligence  of  its 
independent  contractor  where  it  retained  no  control  over  the 
mode  and  manner  of  the  performance  of  the  work  contracted 
for,  yet  it  may  be  liable,  if  it  was  itself  guilty  of  negligence  in 
allowing  or  permitting  said  natural  gas  to  escape  through  a 
defectively  laid  or  jointed  gas-pipe  or  main.  If,  by  the  exercise 
of  ordinary  care  and  prudence,  it  could  have  discovered  such 
defect,  and  it  did  not  do  so,  it  was  guilty  of  negligence.  It 
was  not  bound  to  know  that  such  defect  existed,  but  it.  was 
required  to  use  ordinary  care  and  prudence  to  prevent  accidents 
and  injuries  to  others,  and  whether  it  used  that  degree  of  care 
and  prudence  which  men  of  ordinary  care  and  prudence  are 
accustomed  to  use  under  the  same  or  similar  circumstances,  is 
a  question  for  the  jury  to  determine.  If  it  did,  it  is  not  liable. 
But  if  it  failed  and  neglected  to  use  ordinary  care,  it  was  negli- 
gent, and,  if  its  negligence  was  the  proximate  cause  of  the 
injury  complained  of,  the  plaintiff  is  entitled  to  recover,  unless 
he  has  himself  been  guilty  of  contributory  negligence.1 

i  Central  Ohio  Natural  Gas  &  Fuel  Co.  v.  Baker,  supreme  court,  affirmed. 
Evans,   J.,   Franklin   Co.   Com.   Pleas. 

Sec.  2135.     Same — Injury  from  failure  to  close  and  calk  pipes. 

If  the  evidence  shall  fail  to  show  by  a  preponderance  thai  the 
defendant  was  guilty  of  negligence  in  either  of  said  particulars, 
your  verdict  must  be  for  the  defendant.  If,  however,  it  shows 
by  a  preponderance  thereof  that  the  defendant   was  guilty  of 


1928  INSTRUCTIONS  TO  JURY. 

negligence  in  either  of  said  alleged  particulars,   and  that   its 

negligence  in  that  respect  was  the  proximate  cause  of  the  injury 

complained  of  by  the  plaintiff  in  his  petition,  the  defendant  is 

liable. 

If  the  evidence  shall  show  that  the  gas  escaped  from  one  or 

more  of  the  joints  of  the  gas-pipe  or  main,  and  that  it  caused 

an  explosion  and  an  injury  to  the  plaintiff,  such  facts  alone  do 

not  raise  any  presumption,  nor  do  they  tend  to  prove  that  the 

defendant  was  guilty  of  negligence,  and  before  you  can  find 

that  it  was,  the  evidence  must  show  that  it  failed  and  neglected 

to  use  and  employ  that  degree  of  care   and  prudence  which 

persons  of  ordinary  care  and  prudence  are  accustomed  to  use 

and   employ   under  the  same   circumstances.      If  it  used   such 

degree  of  care,  it  is  not  guilty  of  negligence.     But  if  it  failed 

to  use  such  care,  it  was  guilty  of  negligence. 

i  From  Central   Ohio  Natural   Gas   &    Fuel   Co.   v.  Baker,   supreme  court, 
affirmed.     By  Evans,  J.,  Franklin  Com.  Fleas. 

Sec.  2136.     Injury  from  explosion  of  boiler. 

If  the  plaintiff  was  without  fault  on  his  part,  and  was  injured 
by  the  explosion  of  a  boiler  operated  by  the  defendants,  or  their 
servant  or  agent,  the  mere  fact  of  such  explosion  raises  a  pre- 
sumption of  negligence  on  the  part  of  the  defendants.  This 
presumption  is  only  prima  facie,  however,  and  not  conclusive; 
that  is,  the  plaintiff  will  be  entitled  to  recover  on  such  presump- 
tion, unless  the  defendants,  by  a  preponderance  of  evidence, 
show  that  they  exercised  ordinary  care  and  prudence,  that  is, 
such  care  and  prudence  as  is  ordinarily  exercised  by  men  of 
ordinary  prudence  under  like  circumstances.  It  was  the  duty 
of  the  defendants  to  furnish  a  competent  engineer  to  run  said 
engine  and  boiler,  and  if  the  plaintiff  was  injured  by  reason 
of  the  incompetency  of  the  engineer,  the  plaintiff  can  recover, 
if  he  was  without  fault  himself.  If  you  find  from  the  evidence 
that  plaintiff's  injury  was  caused  by  the  explosion  of  the  steam 
boiler  operated  by  and  belonging  to  the  defendants,  they  must 


NEGLIGENCE — MISCELLANEOUS   CASES.  1929 

show  by  preponderance  of  proof  the  competency  of  their  en- 
gineer. If,  however,  it  be  shown  that  the  defendants'  engineer 
was  competent,  yet  if  he,  by  any  carelessness  or  neglect  on  his 
part,  caused  the  explosion  and  injured  plaintiff,  he  can  recover, 
if  plaintiff  was  without  fault  on  his  part.  The  engineer  must 
not  only  have  been  competent,  but  he  must  not  have  failed  to 
exercise  his  competency  with  proper  care  and  skill.  Was  there 
any  want  of  care  on  the  part  of  the  engineer  in  the  management 
of  said  boiler  at  the  time  of  said  explosion?  In  determining 
this  you  will  inquire  was  there  a  lack  of  water  in  the  boiler, 
and  what  was  the  pressure  of  steam  in  the  boiler  at  the  time, 
and  whether  it  was  excessive.  Of  course,  if  the  plaintiff  was 
himself  acting  as  engineer  at  the  time,  and  neglected  to  exer- 
cise due  and  ordinary  care,  he  can  not  recover.  It  was  also 
the  duty  of  the  defendants  to  furnish  machinery  reasonably 
proper  and  fit  for  the  purpose  for  which  it  was  used.  If  there 
was  any  defect  in  the  engine  or  boiler  which  the  defendants 
knew  of,  or  of  which  they  might  have  known  by  the  exercise 
of  reasonable  care  and  diligence,  and  the  plaintiff  was  injured 
by  reason  of  such  defect,  he  will  be  entitled  to  recover.  This 
does  not,  however,  relate  to  the  lack  of  power  in  the  engine  to 
operate  the  said  mill.1 
i  From  Huff  v.  Austin,  supreme  court,  affirmed.     Price,  J.,  Logan  county. 

Sec.  2137.  Collision  between  street  car  and  steam  railway  en- 
gine at  crossing — Action  for  damage  to  street 
car. 

1.  Duty  of  each  party. 

2.  Ordinances  as  to  speed. 

3.  Failure  to  sound  whistle. 

4.  Gateman — Open  gate  an  invitation  to  proceed — Did  not 

absolve  driver  of  car  from  exercising  due  can . 

1.  Duty  of  each  party.     The  defendant  was  hound  to  exercise 
ordinary  care  towards  the  plaintiff  in  running  and  operating 


1930  INSTRUCTIONS  TO  JURY. 

its  locomotive  upon  and  along  its  track,  and  in  crossing  the 
track  of  the  street  railway  of  the  plaintiff,  and  the  plaintiff  was 
bound  to  use  ordinary  care  on  its  part  in  crossing  the  railroad 
track  of  the  defendant. 

2.  Ordinances  as  to  speed.  In  determining  the  questions,  you 
should  carefully  consider  the  ordinances  of  the  city  of  Y.,  one 
of  which  requires  the  locomotives  passing  through  the  city  limits 
to  run  at  a  speed  less  than  six  miles  per  hour,  and  if  you  should 
find  at  the  time  of  the  collision  the  engine  was  being  run  by 
the  defendant  at  a  speed  greater  than  six  miles  an  hour,  this 
fact  alone  would  not  be  sufficient  evidence  to  entitle  the  plaintiff 
to  recover,  yet  it  is  competent  evidence  to  be  considered  by  you 
in  connection  with  the  other  evidence  adduced,  as  to  whether 
or  not  the  engine  was  being  run  at  a  dangerous  rate  of  speed, 
and  whether  or  not  the  defendant  is  liable  for  negligence  or  want 
of  care  on  that  occasion. 

3.  Failure  to  sound  whistle.  Neither  would  the  failure  to 
sound  the  whistle  of  the  locomotive,  unless  you  find  that  the 
defendant  by  sounding  the  whistle  could  have  avoided  the  col- 
lision with  the  car  of  the  plaintiff,  and  that  the  failure  to  sound 
the  same  was  negligence  on  the  part  of  the  defendant,  which 
resulted  in  injury  to  the  plaintiff. 

4.  Gateman — Open  gate  an  invitation  to  proceed — Did  not 
absolve  driver  of  car  from  exercising  due  care.  And  if  you  find 
that  the  defendant  maintained  the  gate  at  that  crossing,  and 
that  the  same  was  in  charge  of  a  gateman  placed  there  by  the 
defendant,  the  plaintiff  though  driver  of  the  street  car,  had  a 
right  to  rely  upon  the  gateman  properly  discharging  his  duty; 
and  if  the  driver  of  the  street  car,  upon  approaching  the  cross- 
ing, found  the  gate  open,  it  was  an  invitation  to  him  to  proceed, 
and  it  indicated  to  him  that  the  track  was  then  clear,  and  that 
he  might  proceed  with  safety ;  but  he  had  no  right  to  blindly 
rely  upon  this  fact,  and  rush  into  danger  which  he  saw  or 
heard,  or  which,  by  the  exercise  of  ordinary  care,  he  might  have 
seen  and  heard;    and  it  did  not  absolve  him  from  the  duty  of 


NEGLIGENCE — MISCELLANEOUS   CASES.  1931 

exercising  ordinary  care  upon  his  part  in  entering  upon  the 
crossing  and  in  crossing  the  track  of  the  defendant.  Notwith- 
standing this  fact,  the  driver  was  bound  to  exercise  his  senses, 
to  look  and  listen,  and  to  take  all  such  precautions  as  ordinarily 
prudent  persons  ordinarily  exercise  under  the  same  or  similar 
circumstances,  to  stop  his  car  or  proceed  promptly  across  the 
track,  whichever,  under  all  circumstances,  ordinarily  prudent 
persons  would  have  done;  and  if  he  did  that  which  ordinarily 
prudent  persons,  under  the  same  or  similar  circumstances,  would 
not  have  done,  or  omitted  to  do  that  which  ordinarily  prudent 
persons  would  have  done  under  the  same  or  similar  circum- 
stances, and  this  act  or  omission  on  his  part  contributed  to  the 
damage  which  the  plaintiff  sustained,  then  the  plaintiff  could 
not  recover,  even  though  the  defendant  was  negligent  in  having 
the  gate  open  at  that  time.1 

i  Johnston,  J.,   in  Youngstown   Street  Railway  Co.   v.  N.  Y.  L.   E.  &  W. 
R.  R.  Co. 

Sec.  2138.     Injury  to  passenger  from  collision  between  cars  on 
scenic  railway  in  public  park. 

If  the  plaintiff  took  passage  in  one  of  the  defendant's  cars 
and  paid  the  usual  fare  for  riding,  with  the  intention  as  con- 
templated by  both  parties,  of  carrying  her  over  the  course  of 
said  railway  to  the  original  starting  point,  it  was  the  duty  of 
the  defendant,  and  she  had  the  right  to  assume  that  the  de- 
fendant would  exercise  ordinary  care  in  the  management  and 
operation  of  the  said  railway,  including  the  car  and  track  on 
which  she  was  riding,  in  order  to  prevent  a  collision  of  such 
car  with  another  on  said  track;  and  if  the  collision  as  alleged, 
occurred  in  the  manner  alleged  in  the  petition,  while  defendanl 
was  in  control  and  management  of  the  device  known  as  the 
scenic  railway  including  the  ear  with  which  Hie  car  in  which 
the  plaintiff  alleges  to  have  been  riding  collided,  and  if  from 
the  character,  management  and  circumstances  of  said  collision 
you  find  that  the  collision  was  such  as  in  the  ordinary  course 


1932  INSTRUCTIONS  TO  JURY. 

of  things  would  not  have  happened  if  the  defendant  had  exer- 
cised ordinary  care  in  the  management  of  said  railway  and  of 
the  operation  of  the  cars  and  track  in  connection  therewith, 
you  are  justified  in  finding  that  such  accident  resulted  from 
want  of  care  on  the  defendant's  part;  or  in  other  words,  that 
the  defendant  was  negligent  in  the  particular  mentioned  in  said 
petition,  unless  the  defendant  by  at  least  an  equal  weight  of 
countervailing  evidence  adduced,  shows  that  the  accident  did 
not  occur  by  reason  of  a  want  of  ordinary  care  on  its  part,  but 
occurred  notwithstanding  its  exercise  of  ordinary  care  at  the 
time  of  the  accident.  Whether  or  not  the  character,  manner 
and  circumstances  of  the  alleged  accident  as  shown  by  the  evi- 
dence adduced  justifies  you  in  drawing  the  inference  that  the 
defendant  was  guilty  of  negligence  in  the  particular  alleged 
in  the  petition,  and  if  so,  whether  or  not  the  defendant  has 
rebutted  such  negligence  by  an  equal  weight  of  countervailing 
evidence  showing  that  notwithstanding  said  accident  it  exer- 
cised ordinary  care  in  the  premises,  are  matters  entirely  left  to 
your  judgment. 

If  you  determine  from  the  evidence  that  the  manner  and  cir- 
cumstances of  the  accident  raise  a  reasonable  inference  that  the 
defendant  was  negligent  as  alleged  in  the  petition  and  that  no 
sufficient  explanation  of  the  accident  by  evidence  on  the  part 
of  the  defendant,  of  equal  weight  to  that  of  the  plaintiff  on  the 
question  of  negligence,  has  been  made,  showing  that'  notwith- 
standing the  occurrence  of  the  collision  the  defendant  exercised 
ordinary  care,  it  will  be  your  duty  to  find  that  the  defendant 
was  negligent  in  the  particular  complained  of.  But  if  you  de- 
termine either  that  the  manner  and  character  of  the  accident 
do  not  raise  a  reasonable  inference  of  negligence  as  alleged 
against  it,  or  although  the  manner  and  character  of  the  acci- 
dent raises  a  reasonable  inference  of  defendant's  negligence, 
such  negligence  has  been  rebutted  by  at  least  an  equal  weight 
of  evidence  on  the  part  of  the  defendant  showing  that  notwith- 
standing the   accident  the  defendant   exercised  ordinary  care, 


NEGLIGENCE MISCELLANEOUS   CASES.  1933 

you  will  find  that  the  defendant  was  not  negligent  in  the  par- 
ticular as  alleged,  and  you  will  return  a  verdict  for  the  de- 
fendant.1 

i  Chambers  v.   The  Olentangy   Park  Co.,  Com.  Pleas  Court,    Franklin  Co., 
0.     Rogers,  J. 

Sec.  2139.    Traction  engine  in  highway  lawful— No  liability 
from  ordinary  use — Not  bound  to  be  on  look- 
out for  frightened  horses  in  field — Owner  or 
operator  liable  for  wanton  or   unnecessary 
-  sounding  whistle. 

The  jury  is  instructed  that  the  operation  of  a  traction  engine 
as  under  the  circumstances  appearing  in  the  evidence  in  this 
case,  was  a  lawful,  legitimate  business,  and  that  the  defendant 
had  the  right  to  operate  it  and  engage  in  the  work  that  they 
were  doing  at  the  time.  There  can  be  no  liability  on  the  part 
of  the  defendant  for  any  consequences  of  the  injury  by  the 
usual,  ordinary  and  reasonable  operation  of  the  engine,  when, 
for  instance,  the  defendant  has  done  nothing  unusual,  nothing 
out  of  the  ordinary,  nothing  beyond  what  was  reasonably  and 
ordinarily  necessary  to  be  done  in  the  management  and  in  the 
operation  of  the  engine  and  including  the  matter  of  the  blowing 
of  the  whistle. 

The  defendant  can  not  be  held  bound  to  be  on  the  lookout 
for  the  ordinary  fright  of  horses  in  a  field  or  by  reason  of  the 
passage  of  the  engine,  nor  by  reason  of  the  ordinary  and  reason- 
ably necessary  blowing  of  the  whistle,  in  pursuance  of  some 
duty  and  purpose  to  be  accomplished  by  blowing  the  whistle. 
The  defendant  can  be  held  only  for  extraordinary  consequences, 
only  for  the  wanton  and  unnecessary  sounding  of  the  whistle, 
sounding  of  the  whistle  when  it  is  not  reasonably  necessary  to 
accomplish  some  purpose  but  is  carelessly,  wantonly  and  use- 
lessly sounded. 

Now  1  think  that  1  should  say  to  you  that  in  addition  to  what 
T  have  said  that  it  is  not  the  duty  of  the  defendant   to  keep  on 


1933-a  INSTRUCTIONS   TO   JURY. 

the  lookout  for  the  ordinary  frightening  of  animals;  that  the 
defendant  would  not  he  liable  for  the  injury  to  the  horse  unless 
after  discovering  its  fright  and  seeing  the  horse  in  a  frightened 
condition  that  he  blew  the  whistle  under  those  circumstances 
unnecessarily,  and  even  necessarily  if  he  could  just  as  well  have 
avoided  it  and  accomplished  his  purpose  in  some  other  reason- 
able manner.  In  order  to  find  the  defendant  guilty  I  do  not 
know  but  what  you  would  have  to  find  from  the  evidence  that 
he  could  have  reasonably  anticipated  the  consequences  of  the 
fright  to  the  animal.  A  man  operating  a  traction  engine  under 
such  circumstances  could  not  ordinarily  and  usually  be  held 
to  anticipate  that  an  animal  would  become  frightened  and  kill 
itself  from  the  ordinary  use  of  the  engine.  If  the  horse  or  the 
horses  were  already  frightened  by  the  operation  of  the  engine 
or  by  the  running  of  the  engine,  the  jury  may  consider  whether 
the  blowing  of  the  whistle  added  perceptibly  to  their  fright,  or 
materially  contributed  to  the  injury,  and  whether  the  defendant 
could  reasonably  have  anticipated  that  the  horse  would  do  more 
than  run  around  in  the  field ;  whether  if  the  whistle  had  not  been 
1)1  own  the  horse  was  already  in  such  frightened  condition  that 
he  might  or  could  have  injured  himself  in  the  manner  in  which 
he  was. 

Negligence  is  the  absence  of  care  under  the  particular  cir- 
cumstances. And,  of  course,  the  question  which  I  have  sub- 
mitted to  you  here  is  whether  or  not  the  defendant  was  ordi- 
narily prudent  or  whether  or  not  he  was  guilty  of  a  lack  of 
prudence  under  the  peculiar  circumstances  of  this  case,  and 
whether  that  lack  of  prudence,  if  any  there  was,  was  the  direct 
and  immediate  cause  of  the  death  of  the  animal. 

I  have  endeavored  to  make  it  clear,  if  I  have  not,  that  my 
view  of  the  law  is  that  the  defendant  is  not  bound  to  keep  a 
lookout  for  the  frightening  of  the  horses.  Of  course  he  has  his 
own  duties  to  perform  in  the  operation  of  the  engine,  and  if  he 
did  not  know  that  the  horse  was  in  a  frightened  condition  and 
blew  the  whistle,  not  knowing  that,  or  if  he  could  not  have 


NEGLIGENCE MISCELLANEOUS    CASES.  1933-b 

reasonably  known  of  its  fright  and  blew  the  whistle  under  such 
circumstances,  there  would  be  no  liability.  But  if  he  did  know 
and  saw  the  frightened  condition,  and  if  the  jury  believe  that  if 
the  whistle  had  not  been  blown  under  such  circumstances  and 
it  was  unnecessarily  blown,  then  he  would  be  liable. 

If  you  find  for  the  plaintiff  you  will  assess  the  amount  of  the 
value  of  the  horse  together  with  any  expenses  that  the  plaintiff 
may  have  incurred  for  caring  for  the  horse  after  the  injury, 
and  fix  the  amount  in  your  verdict.1 

If  you  find  for  the  defendant  you  will  simply  say  so. 

i  Hunter  v.   Koehler,   Franklin   Co.    Com.   Pleas.     Kinkead,   J.     This    is   a 
novel   case.     It    is   given    as    a   suggestion. 


CHAPTER   CXXIII. 
NUISANCE. 

(For  Streets,  Sidewalks,  Excavations,  involving  liability  of  mu. 
nicipality,  see  Chapter ,  Municipal  Corporations.) 


sec. 
2140. 


2141. 
2142. 
2143. 


2144. 
2145. 


Nuisanc  e — Comprehensive 
view  and  definition  of 
wrong. 

Definition — Another   form. 

Modern  statutory  definition. 

There  must  be  actual  injury 
more  than  a  mere  ten- 
dency. 

Degree  of  annoyance  to  con- 
stitute. 

Liability  of  property  owner 
for  injury  to  traveler 
from  opening  or  excava- 
tion in  street  adjoining, 
i.  Dominion  over  property 
by  owner — May  exclude 
persons  from  it. 

2.  Duty  of  traveler  on  high- 

way. 

3.  Private  road. 


2146.  Duty   of   lot  owner   where  an 

excavation  made  in  side- 
walk in  front  of  premises 
by  contractor. 

2147.  Responsibility    of    lot    owner 

for  excavation  made  In 
premises  in  front  of 
premises  by  independent 
contractor. 

2148.  Duty  of  traveler  on   highway 

— May  presume  city  has 
performed  its  duty  with 
reference  to  street  s — 
Lights  and  guards  in 
streets. 

2149.  Adjoining    landowners,    rights 

and  obligations  of,  to 
each  other.  To  what 
extent  lower  proprietor 
may  dig. 


Sec.  2140.     Nuisance — Comprehensive  view  and  definition  of 
wrong. 

Nuisance,  as  a  wrong  in  law  is  to  be  distinguished  from  neg- 
ligence. The  boundary,  or  dividing  line  between  the  two  may 
at  times  be  obscure  and  difficult  to  discern,  because  nuisance 
involves  and  includes  acts  of  negligence.  The  wrong  is  so  gen- 
eral and  comprehensive  in  relation  to  the  acts  and  conditions 
which  it  embraces  that  a  specific  definition  made  to  cover  a 
given  case  may  not  include  all  acts  and  conditions  which  it  may 
1934 


nuisance.  1935 

in  general  embrace.  An  attempt  to  define  all  nuisances  is  to 
describe  the  infinite  variety  of  ways  in  which  one  may  be  an- 
noyed or  impeded  in  the  enjoyment  of  his  rights  which  are 
injured  by  the  wrong  designated  in  law  as  nuisance. 

Generally  speaking,  anything  not  authorized  by  law  which 
maketh  hurt,  inconvenience  or  damage  is  held  to  be  a  nuisance. 
But  such  conception  of  the  wrong  ignores  the  element  which 
distinguishes  it  from  negligence  and  marks  the  dividing  line 
between  the  two. 

This  element  or  characteristic  is  the  duration  or  continuance 
of  the  acts  or  conditions,  the  period  of  time  which  a  condition 
or  situation  is  allowed  by  continuous  neglect  or  omission  to 
exist  or  remain,  so  as  to  menace  and  injure  the  rights  of  others. 

An  act  of  negligence  is  specific  and  definite,  and  when  com- 
mitted, a  right  of  action  arises  at  once  in  favor  of  one  injured 
thereby. 

On  the  other  hand,  the  maintenance  of  a  nuisance  implies 
negligence  and  worse.  It  may  begin  with  a  specific  act  of 
negligence  while  the  wrong  becomes  complete  and  existing  by 
continuous  acts  of  omission  and  neglect. 

So  in  a  general  way  it  may  be  said  that  nuisance  consists  of 
continuous  neglects  or  omissions  in  the  use,  care  or  management 
of  property,  streets,  highways,  or  of  acts  of  commission  in  the 
use  of  property,  or  in  carrying  on  a  trade,  or  in  the  exercise  of 
proprietary  rights,  whereby  another  is  injured  in  his  person, 
health,  personal  comfort  or  property. 

There  are  three  rights  which  may  be  injured  by  nuisance, 
viz.:  the  right  of  person,  the  right  of  personal  comfort,  and 
the  right  of  property. 

To  particularize  further,  such  rights,  or  either  of  them,  must 
be  actually  injured  to  some  appreciable,  tangible  or  measurable 
extent.  And  this  is  to  be  decided  by  the  jury  according  to  the 
notions  of  comfort  and  convenience  entertained  by  persons  gen- 
erally of  ordinary  tastes,  and  as  shown  by  the  evidei The 

jury  are  not  allowed  to  speculate  and  conjecture  outside  of  the 
evidence,   according  to  the  individual   notion   or  view  of  men 


1936  INSTRUCTIONS  TO  JURY. 

composing  the  panel,  but  must  instead  be  governed  by  the  evi- 
dence admitted,  and  the  law  applicable. 

[Then  may  follow  an  instruction  to  the  particular  case  in 
hand.] 

Sec.  2141.     Definition — Another  form. 

"The  term  nuisance,  derived  from  the  French  word  'nuire,' 
to  do  hurt,  or  to  annoy,  is  applied  indiscriminately  to  infringe- 
ments upon  the  enjoyment  of  proprietary  and  personal  rights."1 

Nuisance,  something  noxious  or  offensive.  Anything  not  au- 
thorized by  law,  which  maketh  hurt,  inconvenience,  or  damage.2 

By  hurt  or  annoyance  is  meant  not  a  physical  injury  to  the 
owner  or  possessor  thereof,  as  respects  his  dealing  with,  possess- 
ing or  enjoying  them.3  "Nuisance  is  a  distinct  civil  wrong, 
consisting  of  anything  wrongfully  done  or  permitted  which 
interferes  with  or  annoys  another  in  the  enjoyment  of  his  legal 
rights."4 

If  an  individual  or  corporation  (municipal  or  private)  upon 
whom  is  imposed  the  burden  of  keeping  a  highway  in  repair, 
permit  the  same  to  be  out  of  repair  so  as  seriously  to  interfere 
with  convenient  transit  over  the  same,  it  is  a  nuisance,  subjecting 
the  person  or  corporation  to  damages  at  the  suit  of  persons 
injured  by  reavson  of  such  defects  or  want'  of  repair.5 

To  constitute  a  nuisance,  there  must  be  a  material  or  substan- 
tial injury,  and  not  an  imaginative  one.  It  may  be  difficult 
in  some  cases  to  ascertain  whether  the  injury  be  material ;  but 
it  is  a  question  for  the  jury  to  consider  and  determine.8 

Hence  to  entitle  plaintiff  to  recover  in  this  action,  you  must 
find  from  a  preponderance  of  the  evidence  that  he  has  suffered 
a  real,  material,  and  substantial  injury,  and  it  is  left  for  you 
to  determine  what  amounts  to  such  an  injury.7 

i  Addison  on  Torts,  361. 

2  46  O.  S.  446. 

3  Cooley  on  Torts,  670. 

*  See  Bishop's  Non.   Cont.,   sec.   411,   note;    Cooley    on   Torts,    670    (565). 

A  precise  definition  is  impracticable.  12  O.  S.  398. 
s  Wood  on   Nuisance,    sec.   307 ;    Cardington   v.   Fredericks,   46   0.   S.   442. 


NUISANCE.  1937 

e  Cooper  v.  Hull,   5  0.  S.   321,  23,  24. 

"  Cols.  Gas,  etc.,  Co.  v.  Freeland,  12  0.  S.  400. 

The  question  of  nuisance  vcl  non  can  not  be  determined  by  reference  to 
the  rules  of  the  common  law,  but  each  case  mustrt>e  considered  on 
its  own  facts.  A  thing  may  or  may  not  be  a  nuisance  according 
to  the  manner  in  which  it  is  placed,  or  the  time  it  has  been  carried 
on  without  complaint,  when  measured  by  the  mind  and  taste  of 
the  average  citizen.  Densmore  v.  Evergreen  Camp.  01  Wash.  230, 
112  Pac.  255,  Ann.  Cas.  1912,  B.  1206. 

Sec.  2142.     Modern  statutory  definition. 

A  nuisance  consists  in  unlawfully  doing  an  act,  or  omitting 
to  perform  a  duty,  which  act  or  omission  either  annoys,  injures 
or  endangers  the  comfort,  repose,  health  or  safety  of  others, 
offends  decency,  or  in  any  way  renders  other  persons  insecure 
in  life  or  in  the  use  of  property.1 

'A  statutory  definition,  see  Everett  v.  Paschall,  61  Wash.  47,  111  Par. 
879,  Ann.  Cas.  1912,  P>.  1128. 

Under  this  statute  a  private  sanitarium  for  the  treatment  of  tuberculosis 
patients  in  a  residential  section  of  a  city  is  a  nuisance.  Everett 
v.  Paschall,  61  Wash.  47,  111  Pac.  879,  Ann.  Cas.  L912,  15.  1128: 
Shepard  v.  Seattle,  59  Wash.  363,  109  Pac.  L067.  Dense  smoke 
only  becomes  a  nuisance  when  it  permeates  the  air  surrounding 
people  and  invades  their  residences  and  places  of  occupation. 
State  v.  Railway,  114  Minn.  122,  130  N.  W.  545,  Ann.  Cas.  1912, 
B.   1030. 

Sec.  2143.     There  must  be  actual  injury — More  than  mere  ten- 
dency. 

Nuisance  is  a  question  of  degree,  depending  upon  varying 
circumstances.  There  must  be  more  than  a  tendency  to  injure; 
there  must  be  something  appreciable,  tangible,  actual,  measur- 
able. In  all  cases  in  determining  whether  the  injury  charged 
comes  within  these  general  terms,  resorl  should  be  had  to  sound 
common  sense.  Each  case  must  be  judged  by  itself.  Regard 
must  be  had  for  the  notions  of  eomforl  and  convenience  enter 
tained  by  persons  generally  of  ordinary  tastes  and  susceptibil- 
ities. The  nuisance  and  discomforl  must  affec1  the  ordinary 
comfort  of  human  existence  as  understood  by  the  people  in 
the  present  state  of  enlightenment.     The  theories  of  scientific 


1938  INSTRUCTIONS  TO  JURY. 

men,  though  provable  by  scientific  reference,  can  not  be  con- 
trolling unless  shared  by  people  generally.1 

i  Everett  v.  Paschall,  61  Wash.  47,  111  Pac.  879,  Ann.  Cas.  1912,  B.  1128; 
Joyce  on  Nuisances,  19;  Cols.  Gas  Light  Co.  v.  Freeland,  12  O.  tS. 
392;  Grover  v.  Zook,  44  Wash.  494,  12  Ann.  Cas.  192,  7  L.  R.  A. 
(N.S.)    582,  120  Am.  St.  1012. 

Sec.  2144.     Degree  of  annoyance  to  constitute. 

What  amount  of  annoyance  or  inconvenience  will  constitute 
a  legal  injury,  resulting  in  actual  damage,  is  a  question  of 
degree,  and  must  necessarily  be  dependent  upon  varying  cir- 
cumstances, and  can  not  be  precisely  defined  as  matter  of  law, 
but  must  be  left  to  the  good  sense  and  sound  discretion  of  the 
jury.1  The  court  can  only  give  you  a  rule  which  will  serve 
as  a  guard  against  an  unreasonable  exercise  of  that  discretion. 
You  must  be  guided  by  the  ordinary  standard  of  comfort  and 
convenience,  and  not  by  particular  or  exceptional  above  or  below 
the  ordinary  standard.  Regard  should  be  had  to  the  notions 
of  comfort  and  convenience  entertained  by  persons  generally 
of  ordinary  tastes  and  susceptibilities.  What  such  persons 
would  not  regard  as  an  inconvenience  materially  interfering 
with  their  physical  comfort,  may  be  properly  attributed,  when 
alleged  to  be  a  nuisance,  to  the  fancy  or  fastidious  taste  of  the 
party.  On  the  other  hand,  the  charge  of  nuisance,  if  it  be  of  a 
thing  offensive  to  persons  generally,  can  not  be  escaped  by  show- 
ing that  to  some  persons  it  is  not  at  all  unpleasant  or  disagree- 
able.2 

By  a  material  injury  is  meant  one  resulting  in  damages  of  a 
substantial  character  or  nature,  not  merely  nominal,  and  which 
are,  in  some  cases,  awarded  to  prevent  a  wrong  from  ripening 
into  a  right  by  lapse  of  time.3 

i  5  Ohio,  323,  12  0.  S.  399. 

2  Cols.  Gas,  etc.,  Co.  v.  Freeland,  12  0.  S.  392,  399;  see  Bishop's  Non. 
Cont.   Law,   sec.   416,   44   0.   S.   279,  22   O.   S.  247,   253. 

a  Crawford  v.  Rambo,  44  O.  S.  279. 

Damages  may  be  awarded  when  the  circumstances  would  not  entitle  the 
injured  to  an  injunction.  Id.  Jaggard  on  Torts,  808.  As  to  what 
wi1!  be  allowed  by  way  of  damages,  see  Id.  808,  809. 


NUISANCE.  1939 

Sec.  2145.    Liability  of  property  owner  for  injury  to  traveler 
from  opening  or  exavation  in  street  adjoining-. 

1.  Dominion  over  property  by  owner — May  exclude  persons 

from  it. 

2.  Duty  of  traveler  on  highway. 

3.  Private  road. 

1.  Dominion  over  property  by  owner — May  exclude  persons 
from  it.  The  ownership  of  property  implies  absolute  dominion 
over  it,  as  against  all  other  persons,  subject,  however,  to  the 
application  of  a  well-known  maxim  of  the  law  which  requires 
that  everyone  shall  use  his  own  property  so  as  not  to  injure 
another  person.  But  this  maxim  is  not  infringed  by  any  lawful 
use  by  the  owner  in  places  where  a  stranger  may  not  rightfully 
come.  The  dominion  which  the  owner  of  the  property  has  the 
right  to  exercise  implies  that  he  may  exclude  or  prevent  all 
persons  from  coming  upon  his  lands,  and  whoever  docs  enter 
upon  his  lands  without  the  consent  of  the  owner,  express  or 
implied,  is  a  trespasser  and  assumes  the  risk  incident  to  such 
invasion,  subject,  however,  to  certain  qualifications.  The  only 
difference  between  an  express  and  implied  consent  consists  in 
this,  the  one  is  expressed  by  words,  the  other  by  the  surrounding 
circumstances  and  conduct  of  the  parties  implying  that  it  would 
be  unreasonable  to  hold  to  the  contract. 

Where  there  is  no  special  relation  alleged  as  understood  be- 
tween the  plaintiff  and  defendant,  the  defendant  is  under  the 
legal  obligation  or  duty  to  control  and  manage  these  premises 
in  such  reasonable  and  prudent  manner  that  he  shall  not  wrong- 
fully injure  others  rightfully  upon  said  premises  by  any  culp- 
able acts  or  omissions.     *     *     * 

The  owner  of  land  is  not  liable  for  injury  resulting  from  the 
unsafe  or  dangerous  condition  of  his  premises  to  persons  who 
go  upon  them  without  invitation,  express  or  implied. 

The  defendant  would  not  be  liable  to  the  plaintiff  Eor  an 
injury  resulting  from  the  unsafe  or  dangerous  condition  of  his 
premises,  though  adjacent  to  -        -  street  or  8  private  way. 


1940  INSTRUCTIONS  TO  JURY. 

2.  Duty  of  traveler  on  highway.  The  law  imposes  the  duty 
of  ordinary  care  upon  all  persons  traveling  on  the  highway, 
that  degree  of  care  commensurate  with  the  hazards  of  the  high- 
way known  to  him,  or  that  would  he  known  to  him,  had  he  exer- 
cised reasonable  care  and  prudence  under  the  circumstances. 
But  the  plaintiff  can  not  charge  his  errors  and  mistakes  of  judg- 
ment resulting  in  injury  to  him  unless  the  defendant  has,  by 
his  wrongful  acts  or  misconduct,  misled  him  into  such  errors 
or  mistakes  of  judgment. 

3.  Private  road.  You  are  instructed  also  that  protection  can 
only  be  extended  to  the  plaintiff  against  the  hazard  of  the  exca- 
vation upon  the  ground  that  he  was  upon  a  private  road,  having 
the  right  to  presume  from  circumstances  that  the  same  was  a 
highway  upon  which  the  public  had  a  right  to  travel. 

A  person  is  not  justified  in  making  or  maintaining  excava- 
tions either  in  dangerous  proximity  to,  or  in  a  path  where  he 
permits  other  persons  to  traverse,  or  so  near  a  public  road  that 
travelers  in  the  ordinary  aberrations  or  casualties  of  travel  may 
stray  or  be  driven  over  the  line,  and  be  injured  by  falling  into 
such  excavations. 

Beyond  this  liability  to  the  trespasser,  voluntarily  or  invol- 
untarily trespassing,  does  not  go.  The  owner  may  make  what- 
ever excavations  he  chooses  on  his  land  without  fencing  them 
in,  provided  they  are  not  on  the  line  over  which  he  permits 
travelers  to  pass,  or  so  near  a  public  road  that  leads  into  them, 
a  traveler  may  unwittingly  follow. 

The   question  therefore  is,  was  or  was  not  said  excavation 

located  so  near  to  said  street  and  said  private  road,  in 

the  manner  it  was  kept,  as  to  make  it  dangerous  for  a  party 

passing  along  said street  in  a  usual  and  ordinary  manner  ? 

If  it  was  it  was  the  duty  of  the  defendant  to  provide  such  safe- 
guards as  would  reasonably  protect  the  party  traveling  thereon. 
"Was  or  was  not  said  private  road  so  constructed,  located  and 
ordinarily  used  as  to  make  it  reasonably  apparent  that  it  was 
a  public-traveled  road,  so  as  to  reasonably  induce  the  public 
to  go  thereon?     If  so,  then  the  defendant  was  in  duty  bound 


NUISANCE.  1941 

to  provide  such  safeguards  about  said  excavation  as  to  make 
it  reasonably  safe  for  persons  rightfully  traveling  in  said  street 
and  private  road.1 

i  Voris,  J.,  in  Schoner  v.  Schumacher  Milling  Co.,  Summit  Co.  Com. 
Pleas.  Affirmed  by  circuit  and  supreme  court  withoul  report. 
Duty  of  owner  when  he  invites  others  to  tunic  upon  his  premises 
to  exercise  ordinary  care  to  have  the  premises  reasonably  safe. 
Cooley  on  Torts.  718.  Individual  adjoining  owner  to  street  who 
makes  excavations  in  sidewalk  commits  a  nuisance  and  is  liable 
to  any  person  who,  in  the  exercise  of  ordinary  care,  is  injured  there- 
from. Cooley  on  Torts,  748  (626);  Mcllvaine  c.  Wood,  1  Handy. 
166. 


Sec.  2146.     Duty  of  lot  owners  where  excavation  is  made  in 
sidewalk  in  front  of  premises  by  contractor. 

If  the  defendant,  for  the  purpose  of  constructing  a  block  of 
buildings,  removed,  either  by  himself  or  by  anybody  else,  if  he 
caused  to  be  removed  this  sidewalk  and  made  the  excavation 
and  opened  this  hole  into  which  the  plaintiff  fell,  it  is  the  duty 
of  the  defendant  doing  that  by  himself  or  by  his  agents,  by  his 
independent  contractors,  or  in  any  other  way,  it  is  his  en  I  em- 
prise ;  he  is  doing  it  for  his  benefit ;  it  is  his  duty  to  use  ordi- 
nary care  to  see  that  it  is  guarded  and  protected  by  the  use  of 
such  ordinary  care  as  men  of  ordinary  prudence  are  accustomed 
to  employ  in  that  kind  of  enterprise.  It  is  no  defense  for  him 
to  say  that  the  work  was  being  done  by  an  independenl  cod 
tractor.1 

J  From  Ilawver  r.  YVhalen,  40  0.  S.  60.  This  is  apparently  in  conflict 
with  the  doctrine  laid  down  in  Clark  r.  Fry,  8  <  >.  S.  358,  but  as 
the  court  say  in  this  case  (Ilawver  r.  Whalen),  the  principle 
underlying  the  instruction  does  not  necessarily  conflict  with  the 
doctrine  of  Clark  r.  Fry,  supra,  provided  that  the  doctrine  <•!'  that 
case  is  to  he  strictly  limited  1"  the  facts  upon  which  it  was 
announced.  In  Clark  r.  Fry.  it  is  held  thai  the  rule  respondeat 
superior  does  not  apply  in  case  of  an  injury  siislaincd  \>\  reason 
of  negligence  in  the  manner  of  conducting  the  execution  of  a  job 
of  work  in  building  ;i  house,  where  the  house-builder  bj  a  contract 
with  the  owner  of  a  lot.  lias  taken  upon  liimsclf  the  responsibility 
of  the  employment  of  his  own  hands,  and   the  emit  rid   and   direction 


1942  INSTRUCTIONS  TO  JURY. 

of  the  work  in  conformity  with  the  terms  of  the  contract.  If  the 
necessary  or  probable  effect  of  the  performance  of  the  work  would 
be  to  injure  third  persons,  or  create  a  nuisance,  then  the  defend- 
ant is  not  relieved  from  liability,  because  the  work  was  done  by 
a  contractor  over  which  it  had  no  control  in  the  mode  and  manner 
of  doing  it.  Railroad  Co.  r.  Morey,  47  O.  S.  207.  The  making  of 
an  excavation  across  a  public  highway,  which  materially  interferes 
with  public  travel,  is  an  unlawful  act,  unless  authorized  by  proper 
authority,  and  this  because  such  excavation  creates  a  nuisance. 
If  the  defendant  caused  such  an  excavation  to  be  made,  it  can  not 
shield  itself  from  liability  if  injury  resulted  to  persons  traveling 
upon  such  highway,  because  they  had  the  excavations  made  by 
independent  contractors  over  whom  they  had  no  control,  unless 
it  caused  all  reasonable  precautions  to  be  taken  to  prevent  such 
injury.     Railroad  Co.   r.  Morey,  supra. 


Sec.  2147.  Responsibility  of  lot  owner  for  excavation  made  in 
premises  in  front  of  premises  by  independent 
contractor. 

The  rule  of  law  is,  that  where  the  owner  of  a  lot  of  land 
removes  a  section  of  the  sidewalk  along  the  public  street  in 
front  thereof  for  the  purpose  of  constructing  a  block  of  build- 
ings and  excavates  a  deep  hole  for  the  purpose  of  building 
vaults  and  areas  under  the  sidewalk  to  connect  with  the  base- 
ments of  his  buildings,  and  to  be  used  in  connection  therewith, 
and  while  such  vaults  or  areas  are  in  process  of  construction 
the  excavation  is  left  with  insufficient  guard  or  covering  to 
protect  pedestrians  who  are  lawfully  there,  and  one  of  the  latter 
falls  into  such  excavation  or  area  and  is  injured,  it  is  no  defense 
to  an  action  by  the  injured  party  against  the  owners  of  the  lot 
that  they  had  contracted  with  an  independent  contractor  to 
build  the  vault  and  areas,  and  that  this  independent  contractor 
had  omitted  to  cover,  guard  and  protect  the  opening. 

If  these  defendants  took  out  and  removed  a  section  of  that 
sidewalk  to  the  depth  of  eight  or  nine  feet  for  the  purpose  of 
building  vaults  and  an  area  under  it  for  their  own  benefit,  to 
be  used  for  their  own  building,  it  being  of  such  a  character 
as  to  cause  an  obstruction  in  the  midst  of  a  traveled  public 


NUISANCE.  1943 

thoroughfare  or  sidewalk;  if  they  did  that,  and  left  it  un- 
guarded and  unprotected,  and  if  they  failed  to  use  reasonable 
care  to  guard  and  protect  it,  then  it  would  not  matter  whether 
they  had  gone  of  themselves  with  their  own  shovels  and  their 
own  hands  to  take  out  the  dirt  and  make  the  excavation,  or 
whether  they  employed  another  person  to  do  it  by  the  day, 
exercising  supervision  and  control  over  him,  or  allotted  the  job 
out  to  another  person  as  a  wholly  independent  contract;  it 
would  be  their  work  all  the  time;  it  is  their  excavation,  done 
for  them  by  somebody  whom  they  employed  to  do  it,  and  they 
would  be  responsible  to  a  member  of  the  public  who  was  right- 
fully using  this  street  for  the  purpose  of  public  travel,  if,  with- 
out any  fault  upon  his  part,  he  fell  into  that  excavation  and 
was  injured.  I  instruct  you  that  the  law  is  that  it  is  the  duty 
of  these  defendants,  being  the  owners  of  the  premises,  and  the 
lot  belonging  to  them,  and  the  work  being  done  for  their  benefit 
exclusively,  it  is  their  duty  to  see  that  no  dangerous  pitfall  is 
created  in  front  of  their  premises  in  work  of  that  kind.  It  will 
be  important  then  for  you  to  inquire  whether  this  place  was 
negligently  treated  by  these  defendants.  In  other  words,  did 
these  defendants  exercise  that  reasonable  and  ordinary  care 
which  men  of  ordinary  prudence  and  caution  are  accustomed 
to  exercise  under  such  circumstances?1 
i  From  Hawver  v.  Whalen,  49  0.  S.  69.     Blaiulin,  J. 

Sec.  2148.  Duty  of  traveler  on  highway — May  presume  that 
city  has  performed  duty  with  reference  to 
streets — Lights  and  guards  in  streets. 

The  law  imposes  the  duty  of  ordinary  care  upon  plaintiff 
while  traveling  upon  the  public  streets  of  the  city,  and  that 
degree  of  care  commensurate  with  the  hazards  of  the  highway 
known  to  him,  or  that  would  be  known  t<>  him  had  lie  exercised 
reasonable  care  and  prudence  under  the  circumstances.  •  •  • 
And  this  care  must  be  commensurate  with  the  ordinary  hazards 
of  the  highway  and  of  such  public  streets,  and  such  as  were 


1944  INSTRUCTIONS  TO  JURY. 

incident  to  the  construction  of  said  street  and  road;  and  such 
other  hazards  as  were  known  to  him,  or  would  be  known  to  him 
had  he  exercised  ordinary  care  and  prudence.  The  plaintiff, 
acting  in  good  faith  in  absence  of  knowledge  to  the  contrary, 
is  entitled  to  presume  that  the  city  would  and  did  exercise 
reasonable  care  and  prudence  in  performing  its  duty  under  the 
circumstances  known  to  it,  or  that  reasonably  ought  to  have 
been  known  to  it,  in  maintaining  the  street  in  reasonable  con- 
dition and  free  from  nuisance,  so  as  to  be  reasonably  safe  for 
persons  traveling  upon  the  street. 

While  the  defendant  is  not  the  insurer  of  the  safety  of  the 
plaintiff  while  traveling  upon  the  street  in  question,  it  is  bound 
not  to  expose  him  to  any  hazards  that  reasonable  care  and  pru- 
dence could  prevent. 

To  enable  you  to  say  whether  the  defendant  performed  its 
duty  in  the  premises,  you  should  determine  from  the  evidence 
whether  proper  lights,  or  guards,  or  other  proper  precautions 
were  reasonably  provided  to  warrant  and  protect  persons  trav- 
eling in  the  street  of  the  dangers,  if  any,  occasioned  by  the 
opening,  and  its  relations  to  the  sidewalk  in  question.  If  the 
defendant  did  not  so  guard  the  opened  place  and  the  sidewalk, 
it  can  not  be  said  to  have  discharged  its  duties  the  law  imposes 
upon  it.  The  law  imposes  upon  the  city  the  duty  of  careful 
supervision,  control,  and  maintenance  of  the  public  street's,  and 
this  duty  extends  to  sidewalks  of  the  city,  which  are  essentially 
part  of  the  public  street  of  the  city,  and  that  it  shall  cause  the 
same  to  be  maintained  and  guarded  in  such  a  manner  as  not  to 
constitute  a  nuisance. 

The  city  can  only  discharge  this  duty  by  the  exercise  of  all 
reasonable  precautions  to  prevent  injury  to  persons  properly 
passing  in  the  streets  or  on  the  sidewalks  of  the  city  from  the 
injury.1 

i  Voris,  J.,  in  McDonald  v.  City  of   Akron,  Summit  Co.   Com.  Pleas.     Xo 

exception  was  taken  to  the  charge. 
For   full  discussion  of  the  law  involved  in  the  above  charge,  see  Dillon's 

Mun.  Corp.,  sees.  996,  et  seq. 


nuisance.  1945 

Sec.  2149.  Adjoining  land  owners — Rights  and  obligations  of, 
to  each  other — To  what  extent  lower  pro- 
prietor may  dig. 

Every  man  has  the  right  to  use  his  property  in  any  way  he 
may  see  fit,  so  long  as  he  does  not  interfere  with  the  rights  of 
his  neighbor,  and  the  extent  to  which  a  man  may  dig  and  exca- 
vate upon  his  own  ground  which  adjoins  his  neighbor's  land, 
may  be  determined  according  to  the  natural  lay  and  situation 
of  the  two  pieces  of  land.  That  is  to  say,  if  the  lower  of  two 
hillside-owners  desires  to  dig  upon  his  land,  he  may  dig  to  any 
depth  which  would  not  disturb  the  upper's  land  as  it  lay 
naturally,  without  any  buildings,  improvements  or  structures. 
If  the  digging  of  the  lower  one  be  such  as  not  to  disturb  the 
land  above,  if  it  had  no  houses  upon  it,  then  he  may  dig  to  the 
same  extent  though  a  house  be  upon  the  land  then,  and  if  the 
house  tumble  down  and  fall  by  reason  of  such  digging,  the  lower 
owner  is  not  liable  if  he  has  used  his  land  with  regard  to 
the  upper  land  as  nature  made  it,  not  as  man  made  it;  and 
this  he  has  the  right  to  do.1 
3  Wright,  J.,  in  Commissioners  v.  Halm,  Hamilton  Com.  Pleas. 


CHAPTER   CXXIV. 
PARTNERSHIP. 

SEC.  SEC. 

2150.  What  constitutes  partnership.       2155.  Ostensible  partner. 

2151.  Partnership   may   be   inferred       2156.  Right  of  surviving  partner  to 

from  acts  and  conduct  of  wind  up  firm. 

parties.  2157.  Partnership    may    by   mutual 

2152.  Burden  to  prove  partnership.  consent     orally      modify 

2153.  Whether    there    was    general  partnership      contract  — 

agency  between  partners.  Evidenced  by  books. 

2154.  Partners    in   one   transaction. 

Sec.  2150.     What  constitutes  partnership. 

"If  the  jury  find  that  the  defendants  were  jointly  interested 
in  the  business,  in  which  the  work  and  labor  charged  in  the  peti- 
tion were  performed,  sharing  the  profits  and  losses  between  them ; 
that  constitutes  the  defendants  partners,  and  renders  them  liable 
as  such  for  liabilities  incurred  on  account  of  such  business. '  '* 

To  constitute  a  partnership  there  must  be  an  agreement  be- 
tween the  parties,  that  they  will,  from  a  certain  date,  share  the 
profits  and  be  responsible  for  debts  and  losses,  and  carry  on  the 
business  for  their  mutual  benefit ;  and  there  must  be  an  entering 
upon,  or  conducting,  or  doing  business  under  such  agreement.2 

The  best-considered  and  least-objectionable  test'  of  partner- 
ship is  that  as  a  community  of  interest  in  the  profits  of  a  business 
or  transaction  as  a  principal  or  proprietor.3 

But  this  test  is  valuable  as  a  rule  chiefly  because  it  evinces 
a  relation  between  the  parties,  where  each  may  reasonably  be 
presumed  to  act  for  himself  and  as  agent  for  the  others,  and 
to  that  extent  establishes  the  fact  that  the  liability  was  incurred 
on  the  authority  of  all  so  participating  in  the  profits.  Partici- 
pation in  the  profits  is  not  regarded  as  a  rule  so  uniform  and 
unrelenting  as  to  be  unjustly  applied.  The  true  test  of  a  part- 
nership is  left  to  be  that  of  the  relation  of  the  parties  as  prin- 
cipal and  agent,  and  if  you  find  from  the  evidence  that  the 
relation  of  principal  and  agent  existed  between  the  defendants, 
1946 


PARTNERSHIP.  1947 

that  the  one  acted  in  the  business  for  and  on  behalf  of  the  other, 
by  such  acts  they  have  incurred  a  joint  liability,  and  you  may 
then  find  that  a  partnership  existed  between  them.4 

1  Warner  v.  Myrick,  16  Minn.  94. 

2  Thompson  on  Trials,  sec.  1133,  taken  from  Lucas  v.  Cole,  57  Mo.  145. 
s  Par.  on  Part.  71;   Coll.  on  Part.,  sees.  25,  44:   Story  on  Part.,  sees.  36, 

38,  60;   Berthold  v.  Goldsmith,  24  How.  536. 
*  Harvey  v.  Childs,  28  0.  S.  319,  321,  322.     Sharing  in  profits,  even  though 
by  way  of  compensation,  makes  one  a  partner.     Choteau  v.  Raitt 
20  O.    132. 

Sec.  2151.  Partnership  may  be  inferred  from  acts  and  con- 
duct  of  parties. 

There  can  be  no  partnership  between  parties  unless  there  is 
an  agreement  between  them  constituting  the  relation  between 
them  into  a  partnership  entity.  The  contract  may  be  an  ex- 
press one  in  writing  containing  all  the  terms  and  conditions 
thereof.  Or,  like  other  contracts  which  the  law  does  not  require 
to  be  in  writing,  a  contract  of  partnership  may  be  proven  by 
circumstantial  evidence,  that  is,  by  showing  acts  and  conduct 
of  the  parties  from  which  the  fact  may  be  inferred  that  the 
parties  have  agreed  to  become  partners.  It  must  be  made  to 
appear  from  such  acts  and  conduct  of  the  parties  that  there 
was  an  agreement  to  share  the  profits  as  well  as  the  losses  of  the 
business  enterprise,  both  these  elements  being  essential  to  con- 
stitute a  partnership.1 

Hence  if  parties  engage  in  a  joint  business  enterprise,  each 

putting  in  capital  or  labor  or  both,  with  an  agreement  to  share 

the  profits  and  losses  as  such,  such  relation  constitutes  in  law 

a  partnership,  whatever  the  parties  may  call  themselves.2 

iBartlett  v.  Smith,  145  Wis.  31,  129  N.  W.  782,  Ann.  Cas.  1912,  A.  119.V, 

Haswell  v.  Standring,  Iowa,  Ann.  Cas.   1913,  B.   1326. 
2/d. 

Sec.  2152.     Burden  to  prove  partnership. 

In  an  action  for  money  had  and  received,  where  the  plaintiff 
alleges  a  partnership  as  an  essential  fact  necessary  1<>  a  recovery, 
the  burden  is  on  him  to  prove  the  existence  of  tie'  partnership1 
i  Cowart  v.  Fender,  137  Ca.  586,  Ann.  Caw.  1913,  A.  932. 


1948  INSTRUCTIONS  TO  JURY. 

Sec.  2153.     Whether   there    was    a   general    agency    between 
partners. 

"The  jury  are  to  determine  from  the  evidence  in  the  case 
when  the  partnership  commenced.  If  it  was  a  general  part- 
nership formed  generally  for  the  purpose  of  dealing  in  cattle, 
and  each  was  authorized  to  act  for  the  firm,  then  the  act  of  one 
would  be  the  act  of  all,  for  each  acts  as  the  agent  of  the  other. 
But  if  the  jury  should  find  that  it  was  limited  in  its  scope  and 
operation,  and  was  to  take  effect  at  the  time  only  of  the  election 
of  each  partner  in  every  particular  adventure  or  purchase,  then 
the  partnership  could  not  be  held  until  the  property  became  the 
general  property  of  all."1 

i  From  Valentine  v.  Hickle,  39  O.  S.  19. 

"It  must  be  shown  by  the  plaintiff  that  the  cattle  were  bought  by  a 
member  of  the  firm  as  a  partner,  and  therefore  as  the  agent  of  the 
firm,  which  gave  them  an  immediate  vested  interest  at  the  time 
of  the  purchase,  so  that  they  would  have  called  upon  him  for  the 
profits  and  charged  him  witli  the  losses  in  any  sale  that  he  might 
have  individually  made  to  others."     Valentine  v.  Hickle,  supra. 

Sec.  2154.     Partners  in  one  transaction. 

"If  the  jury  find  that  the  defendants  had  any  arrangement 
for  shipping  cattle,  by  which  it  was  agreed  that  either  of  them 
might  buy  stock  on  his  own  responsibility ;  and  upon  its  deliv- 
ery for  shipment  at  said  place  the  others  might  take  an  interest 
in  any  stock  so  purchased  and  delivered,  if  upon  examination 
of  it  they  thought  it  suitable  to  ship  or  not  purchased  too  high ; 
or  by  which,  if  they  purchased  stock  when  all  together,  it  was 
to  be  shipped  on  joint  account;  or  if,  after  looking  at  or  agree- 
ing to  take  an  interest  in  stock  purchased  by  any  one  of  them 
before  delivered  at  said  place,  it  was  to  be  shipped  on  joint 
account  and  the  parties  to  share  in  the  profits  and  losses,  such 
facts  or  agreements  did  not  constitute  them  general  partners, 
but  only  partners  in  each  transaction."1 

iFrom  Valentine  v.  Hickle,  39  0.  S.  19;   Bank  v.  Sawyer,  38  0.  S.  339; 

Peterson  v.  Koach,  32  O.  S.  374. 
Joint  purchasers  of  land  to  be  disposed  of  for  joint  profits  are  partners, 

40  O.  S.  233. 


PARTNERSHIP.  1(J4'J 

Sec.  2155.     Ostensible  partner. 

You  are  instructed  that  a  person,  even  though  he  has  no 
interest  in  the  business  but  who  allows  his  name  to  be  continued 
as  an  ostensible  member  of  the  firm,  may  be  presumed  to  give 
credit  to  the  business,  and  will  to  the  extent  that  third  persons 
are  induced  to  trust  the  firm  on  the  faith  of  his  being  a  member, 
he  will  as  to  such  third  persons  be  estopped  from  denying  that 
he  is  a  member  of  the  firm,  and  he  will  be  held  by  the  use  of 
his  name  to  have  represented  that  he  was  one  of  the  firm,  and 
will  be  so  held  to  be  a  member.1  But  to  hold  one  who  has  so 
allowed  his  name  to  be  connected  with  the  firm  of  which  he  is 
not  a  member,  it  must  appear  that  the  creditor  relied  on  such 
conduct,  and  dealt  with  the  firm  on  the  faith  of  such  party  being 
a  member.2 

i  Speer  v.  Bishop,  24  0.  S.  598;  Story  on  Part.,  sec.  64;  Jenkins  v.  Crane, 

54  Wis.  253. 
2  Cook  v.  P.  S.  Co.,  36  O.  S.  135. 

Sec.  2156.     Right  of  surviving  partner  to  wind  up  firm. 

Gentlemen  of  the  jury,  it'  is  the  right  and  duty  of  the  sur- 
viving partner  to  wind  up  a  firm  by  the  collection  of  assets, 
selling  property  on  hand,  paying  debts,  and  striking  balances. 
He  can  sue  the  estate  of  his  deceased  partner  for  any  amount 
he  finds  due  to  him  on  such  settlement. 

The  burden  is  on  him  to  show  to  you  that  the  balance  he 
claims  is  the  correct  amount. 

To  determine  this  requires  a  knowledge  of  the  agreement  of 
division  of  profits  or  losses.  You  will  have  to  determine  tliis 
agreement.     , 

The  rules  governing  this  question  are  that  the  partnership 
articles,  if  the  firm  continues  longer  than  the  time  limited  in 
the  articles,  are  presumed  to  fix  the  terms  of  the  continuation 
of  the  firm,  just  as  much  as  those  of  the  original  firm.1 

i  Clement  Pates,  J.,  in   Burgoyne,  Admr.,  v.  Moore,  51    O.  S.  626.     Judg- 
ments affirmed. 


1950  INSTRUCTIONS  TO  JURY. 

Sec.  2157.     Partners  may  by  mutual  consent  orally   modify 
partnership   contract — Evidenced   by   books. 

Written  contracts  may  be  changed  by  later  oral  contracts; 
and  on  this  principle  the  partners  may  by  mutual  consent  alter 
any  part  of  the  partnership  articles.  And  this  may  be  done 
by  unanimous  assent  without  spoken  words.  Hence  the  books 
of  the  firm  showing  any  different  arrangement  of  division  of 
profits  and  losses,  or  in  any  way  inconsistent  with  the  articles, 
the  books  will  control  the  articles.  That  is,  the  agreement  of 
partnership  may  vary  at  different  intervals.  The  articles  settle 
what  it  was  on  the  first  day,  and  presumably  it  continues  the 
same  as  then  unless  the  books  or  proved  agreement  have  changed 
the  articles.  The  books  of  a  firm  are  presumed  to  be  the  act 
of  all  the  partners  where  all  had  access  to  them.  Whether  the 
plaintiff  saw  them  is  of  no  consequence,  since  he  is  not  com- 
plaining of  them.  M.  is  bound  by  the  books  because  they  were 
made  under  his  control  or  direction.  After  the  death  of  M. 
the  subsequent  entries  do  not  bind  his  estate.  From  that  time 
on  entries  are  the  entries  of  Mr.  A.  alone,  and  are  his  private 
accounts,  not  binding  upon  M.  except  so  far  as  proved  by  other 
testimony  than  themselves.  And  if  at  different  periods  the 
entries  in  the  partnership  books  show  a  change  in  the  propor- 
tion of  the  profits  or  losses  which  each  partner  was  to  have,  such 
entries  will  determine  each  one's  proportion." 

"2.  If  in  the  several  balancing  of  said  books  and  rendering  of 
statements  copied  therefrom,  the  bad,  delinquent,  and  suspended 
accounts  appear  as  a  part  of  the  assets  of  the  firm,  then  the  said 
defendant  is  not  exempt  from  making  good  M.'s  share  of  those 
accounts  by  reason  of  this  statement  and  balancing  of  the 
books." 

"3.  If  the  agreement  and  the  books  show  an  understanding 
between  the  parties  as  to  their  rights  in  the  business,  the  jury 
are  to  carry  that  agreement  out,  and  statements  by  counsel  as 
to  the  consequences  upon  either  can  not  be  considered  by  them. 
as  no  such  questions  are  involved,  nor  is  there  any  evidence 
upon  the  subject."1 
i  Clement  L.  Bates,  J.,  in  Burgoyne,  Admr..  r.   Moore,   51  0.  S.  626. 


CHAPTER   CXXV. 
PERJURY. 


SEC.  SEC- 

2158.  Defined — the  statute.  2162.  Statements  believed  to  be  true. 

2159.  Materiality  of  statement.  2163.  More    than    one    witness    re- 

2160.  Willfully     and     corruptly —  quired    as    proof — Corro- 

Meaning  of.  boration. 

2161.  Oath    to   be    lawfully    admin- 

istered. 


Sec.  2158.     Defined — The  statute. 

Whoever,  either  verbally  or  in  writing,  on  oath  lawfully  ad- 
ministered, willfully  and  corruptly  states  a  falsehood  as  to  any 
material  matter,  in  a  proceeding  before  any  court,  tribunal,  or 
officer  created  by  law,  or  in  any  matter  in  relation  to  which  an 
oath  is  authorized  by  law  is  guilty  of  perjury.1 
i  Code,  sec.  12842. 

Sec.  2159.     Materiality  of  statement. 

To  constitute  perjury  the  statute  requires  that  the  fact  or 
facts  sworn  to  if  false  shall  be  a  material  matter,  and  it  is 
important,  therefore,  that  you  understand  what  is  meant  by 
material  matter.  The  false  swearing  may  be  to  the  fact  which 
is  immediately  in  issue,  or  to  any  material  circumstance  which 
legitimately  tends  to  prove  or  disprove  such  fad  ;  or  to  any 
circumstance  which  has  the  effect  to  strengthen  and  corroborate 
the  testimony  upon  the  main  fact,  or  which  affecta  the  credit 
of  the  witnesses  giving  testimony.1  It  is  sufficient  if  it  is  ma- 
terial to  any  inquiry  or  question  arising  upon  the  trial,  such  as. 
if  true,  might  properly  influence  the  court  in  any  matter  affect- 
ing the  rights  of  the  parties.     It  must  tend  to  directly  or  cir- 

l  or.  l 


1952  INSTRUCTIONS  TO  JUKY. 

cumstantially    affect    the    probability    or    improbability    of   any 
inquiry  to  be  determined.2 

i  Dilcher  v.  State,  39  0.  S.  133.  A  witness  may  be  guilty  of  perjury  in 
respect  to  false  swearing  concerning  a  mere  circumstance,  3  Russell 
on  Crimes,  121.  False  testimony  which  only  serves  to  explain  the 
knowledge  of  the  witness.     Bishop's  Cr.  Law,  sees.   1034,   1037. 

2  Com.     v.  Grant,  116  Mass.  17;  Jacobs  v.  State,  4  Am.  Cr.  465;  Hawley's 

Cr.   Law,   247;    Clark's   Cr.   Law.   334.     Sufficient   if   material  to   a 
collateral  inquiry:   State  v.  Shupe,  16  la.  36. 

Sec.  2160.     Willfully  and  corruptly — Meaning  of. 

Before  you  can  find  the  defendant  guilty  you  must  be  satis- 
fied beyond  a  reasonable  doubt  that  he  willfully  and  corruptly 
falsely  swore  to  the  matters  charged.  It  must  appear  that  the 
false  oath,  if  it  be  false,  was  taken  with  some  degree  of  delibera- 
tion, or  that  it  was  taken  without  any  knowledge.  By  willfully 
and  corruptly  is  meant  that  the  defendant  has  intentionally 
sworn  to  a  falsehood.  If  the  jury  find  that  the  testimony  was 
false,  still  you  must  be  satisfied  beyond  a  reasonable  doubt  that 
the  defendant  knew  it  to  be  false,  or  that  he  did  not  have  any 
knowledge  on  the  subject,  or  that  he  had  good  reason  to  believe 
it  to  be  false.1 

If  you  find  that  the  intention  to  swear  falsely  did  not  exist, 
or  that  he  believed  that  he  was  telling  the  truth,  and  you  find 
that  such  belief  was  an  honest  belief,  and  he  had  reasonable 
grounds  for  his  belief,  then  you  must  acquit  the  defendant.2 

Or  if  you  find  that  the  testimony  was  inadvertently  given, 

or  under  a  mistaken  knowledge  of  the  facts,  the  defendant  is 

not  guilty.3 

i  Hawley's  Cr.   Law.  240 ;   Clark's  Cr.  Law.  332. 

^  36  N.  Y.  434:  Silner  v.  State,  17  O.  365,  22  O.  S.  477. 

3  Hawley's  Cr.  Law,  249. 

Sec.  2161.     Oath  to  be  lawfully  administered. 

Before  you  can  find  the  defendant  guilty  of  the  crime  of 
perjury  you  must  be  satisfied  beyond  a  reasonable  doubt  that 
the  oath  was  administered  to  him  in  a  lawful  manner,  and  by 


PERJURY.  1953 

some  lawfully  authorized  officer,  and  that  the  oath  must  be  one 
that  is  required  by  law.  If  the  officer  administering  the  oath 
is  not  authorized  to  administer  the  oath,  the  oath  is  not  lawfully 
administered,  and  perjury  can  not  be  predicated  thereon;1  and 
if  the  officer  administers  an  oath  not  warranted  by  law  he  acts 
not  as  an  officer,  and  false  swearing  in  such  case  would  not  be 
perjury.2 

i  State  v.  Jackson.  36  O.  S.  281. 

2  Willis    v.    Patterson,    Tapp.    324;    Beecher   v.    Anderson,   45   Mich.    543; 
People  v.  Garge,  26  Mich.  30. 

Sec.  2162.     Statements  believed  to  be  true. 

You  are  instructed  that  false  swearing  under  an  honest  belief 
that  statements  are  true  is  not  perjury,  still  the  jury  arc  to 
determine  from  all  the  evidence  in  the  case  whether  such  honest 
belief  existed ;  and  if  the  jury  believe  from  the  evidence,  beyond 
a  reasonable  doubt,  that  the  defendant  swore  falsely  as  charged, 
and  that  he  had  no  reasonable  grounds  for  believing  his  state- 
ments to  be  true,  and  did  not  honestly  and  in  good  faith  believe 
them  to  be  true,  then  he  is  guilty  of  perjury. 

If  the  jury  find  that  the  defendant  testifies  as  stated  in  the 
indictment,  and  that  his  testimony  was  false,  still  if  you  have 
a  reasonable  doubt  whether  the  defendant  knowingly  and  will- 
fully testified  falsely  in  giving  such  testimony,  the  jury  should 
find  the  defendant  not  guilty.1 

i  Nye,  J.,  in  State  v.  Berk,  Summit  Co.  Com.  Pleas.     Affirmed  by  circuit 
and  supreme  courts. 

Sec.  2163.     More  than  one  witness  required  as  proof — Corrob- 
oration. 

You  are  instructed  that  the  fact  that  the  defendant  has  sworn 
falsely  can  not  be  established  by  the  testimony  of  one  witness. 
that  the  law  regards  the  oath  of  the  defendant  as  the  testimony 
of  one  credible  witness  in  his  favor,  and  sufficienl  to  counter 
vail  the  testimony  of  one  witness  swearing  positively  in  contra 
diction  of  his  oath,  so  that  the  testimony  of  the  defendant  and 


1954  INSTRUCTIONS  TO  JURY. 

the  one  witness  against  him  would,  if  the  jury  regard  the  de- 
fendant as  a  credible  witness,  leave  the  evidence  evenly  balanced ; 
and  before  the  defendant  can  be  convicted  the  state  must  fur- 
nish corroborative  evidence  of  more  than  the  one  witness,  L.  D., 
or  the  testimony  of  one  witness  and  other  proofs  corroborating 
such  witness. 

The  corroborative  evidence  need  not  be  of  sufficient  force 
to  equal  the  positive  testimony  of  another  witness,  or  such  as 
would  require  the  jury  to  convict  in  a  case  in  which  a  single 
witness  is  sufficient,  but  that  it  must  be  such  as  gives  a  pre- 
ponderance of  the  evidence  in  favor  of  the  state.  In  considera- 
tion of  the  evidence  the  jury  should  keep  this  rule  in  view  in 
determining  whether  the  false  swearing  has  been  proven,  and  if 
the  state  has  failed  to  prove  the  false  swearing  beyond  a  rea- 
sonable doubt,  the  defendant  should  be  acquitted.1 
i  Approved  in  Crusen  v.  State,  10  Ohio,  259. 


CHAPTER   CXXVI. 
POCKET-PICKING. 

SEC.  SEC. 

2164.  Instructions      in     charge     of  1.  The  charge. 

pocket-picking.  2.  The  statute. 

1.  The  indictment.  3.  Conspiracy     to    commit 

2.  The  statute.  crime    of    pocket-picking 

3.  Essential  elements.  essential. 

4.  To  steal  and  take,  etc  4.  Proof    of    conspiracy — By 

5.  Intent — Proof.  circumstances. 

6.  Anything  of  value.  2166.  Possession  of  property  recent- 

2165.  Pocket-picking  —  Aiding     and  ly     stolen     in     crime    of 

abetting.  pocket-picking. 

Sec.  2164.    Instructions  in  charge  of  pocket-picking'. 

1.  The  indictment. 

2.  The  statute. 

3.  Essential  elements. 

4.  To  steal  and  take,  etc. 

5.  Intent — Proof. 

6.  Anything  of  value. 

1.  The  indictment.     The  indictment  in  this  ease  charges  that 

the  defendant  did  on  or  about  the  day  of  ,  19 — , 

in  the  county  of  Franklin,  and  state  of  Ohio,   [read  the  indict- 
ment]. 

2.  The  statute.  The  jury  is  instructed  concerning  the  law  of 
this  state  as  to  the  crime  of  "pocket-picking."  The  statute 
provides  that: 

"Whoever  otherwise  than  by  force  and  violence,  or  by  putting 
in  fear,  shall  steal  and  take  from  the  person  of  another  anything 
of  value,  shall  be  deemed  guilty  of  pocket-picking." 

3.  Essential  elements.  The  essential  elements  of  the  crime 
charged,  the  existence  of  which  you  must  find  beyond  a  reason- 
able doubt  before  you  can  find  the  defendant  guilty  of  1  tit- 
crime  of  pocket-picking,  are  that  on  or  about  the  date  charged 

1055 


1956  INSTRUCTIONS  TO  JURY. 

in  the  indictment,  without  using  any  force  and  violence,  and 
without  in  any  manner  putting  in  fear  the  person  from  whom 
the  property  is  alleged  to  have  been  taken,  the  defendant  did 

steal  and  take  from  such  person  of in  this  case,  anything 

of  value. 

4.  To  steal  and  take,  etc.  By  the  terms  steal  and  take  from 
the  person  of  another,  anything  of  value,  is  meant  that  the  de- 
fendant did   feloniously  steal  and  take  the  property   charged 

by  the  indictment  to  have  been  taken  from  the  person  of 

with  the  intention  of  wrongfully  depriving  the  said  of 

the  said  property,  and  of  converting  the  same  to  his,  the  de- 
fendant's, own  use. 

5.  Intent — Proof.        You    are    instructed    that   the   intent    to 

steal  and  take  from  the  person  of  the  property  alleged 

to  have  been  taken,  does  not  have  to  be  proved  by  direct  evi- 
dence of  an  intent  actually  expressed  by  the  defendant,  but 
the  intent  to  so  steal  and  take  the  property  may  be  presumed 
from  a  wrongful  act  intentionally  done. 

When  an  act  forbidden  by  law  is  proved  to  have  been  know- 
ingly done,  no  further  proof  is  needed  on  the  part  of  the  state 
to  obtain  a  conviction,  as  the  law  in  such  case  prima  facie  pre- 
sumes the  criminal  intent. 

If  you  find,  therefore,  that  the  defendant  did  steal  and  take 

the   said  property   from    the   person   of  as   charged   in 

the  indictment,  you  are  then  warranted  in  finding  that  it  was 
done  by  the  defendant  with  the  intent  to  steal. 

6.  Anything  of  value.  By  the  term  anything  of  value  is 
meant  money,  goods  and  chattels. 

Before  you  can  find  the  defendant  guilty  of  the  crime  of 
pocket-picking  as  charged,  you  must  find  that    [she]    [he]   did 

steal  and  take  from  the  person  of  ,  in  the  manner  and 

form  as  charged,  something  of  value,  as  that  term  has  been 
explained  to  you. 

Sec.  2165.     Pocket-picking— Aiding  and  abetting. 

1.  The  charge. 

2.  The  statute. 


POCKET-PICKING.  1957 

3.  Conspiracy  to  commit  crime  of  pocket-picking  essential. 

4.  Proof  of  conspiracy. 

1.  The  charge.  The  defendant,  ,  is  charged  in  the  in- 
dictment with  aiding  and  abetting  in  the  commission  of 

the  crime  of  pocket-picking  alleged  to  have  been  committed  by 
her  on ,  19 — . 

2.  The  statute.  The  statute  in  Ohio  provides  that:  "Who- 
ever aids,  abets,  or  procures  another  to  commit  any  offense, 
may  be  prosecuted  and  punished  as  if  he  were  the  principal 
offender. ' ' 

Before  you  can  find  the  defendant  guilty  of  the  crime  charged 
against  him  you  must  first  find  beyond  a  reasonable  doubt  that 

the  said did  on  or  about  the day  of ,  19 — , 

without  the  use  of  any  force  or  violence  and  without  putting 

the  said in  fear,  steal  and  take  from  the  person  of 

something  of  value. 

If  you  find  that  did  commit  the  crime  of  pocket-pick- 
ing, then  it  will  become  your  duty  to  consider  the  charge  made 
against  the  defendant  that  he  aided  and  abetted  the  said  — 
in  the  commission  of  said  crime  of  pocket-picking,  or  procured 
her  to  commit  the  same. 

3.  Conspiracy  to  commit,  crime  of  pocket -picking  essential. 
Before  you  can  find  the  defendant  guilty  of  the  crime  of 
aiding  and  abetting  in  the  commission  of  the  crime  of  pocket- 
picking  charged  in  the  indictment,  you  must  first  find  tlint  he 

entered  into  a  conspiracy  with  the  said  to  commit  the 

crime  of  pocket-picking. 

To  render  an  accused  person  who  simply  gives  aid  and  en- 
couragement, but  who  does  not  take  actual  pari  in  the  criminal 
act,  responsible  and  guilty,  it  is  not  necessary  that  he  should 
have  been  strictly,  actually,  and  immediately  present  when  and 
where  the  act  of  picking  the  pocket  of  the  said  —  by  the 

said ,  and  when  she  stole  and  took  the  property  from  him, 

the  said in  the  manner  as  hereinbefore  explained  to  you. 

Tf  the  defendant  was  sufficiently  near  to  give  aid  and  encour- 
agement and  help  to  the  said  ,  that  was  enough.     But 


1958  INSTRUCTIONS  TO  JURY. 

his  mere  presence  at  the  commission  of  the  crime,  or  so  near 
that  he  could  give  aid  and  support  in  the  commission  thereof, 
was  not  alone  sufficient  to  make  him  an  aider  and  abettor. 

To  warrant  you  in  finding  that  the  defendant  aided  and 
abetted  the  commission  of  the  crime  of  pocket-picking  by  the 

said ,  if  you  so  find  the  fact  to  be,  you  must  find  that  he 

purposely  incited  and  encouraged  the  said in  the  act  of 

taking  or  stealing  the  property   from  the  person  of  the  said 

,  if  you  find  that  she  did  so  take  it  or  that  he  did  some 

overt  act  himself  in  connection  therewith,  with  a  view  to  that 
result,  and  in  some  way  contributed  thereto. 

One  who,  not  being  actually  present,  keeps  watch,  or  is  bo 
near  to  where  the  crime  is  committed  as  to  be  able  to  render 
assistance,  or  to  contribute  to  the  production  of  the  act  will, 
in  law,  be  considered  an  aider  and  abettor. 

I  instruct  you,  however,  gentlemen  of  the  jury,  that  the  crime 
of  pocket-picking  is  complete  when  the  person  committing  the 
same  has,  without  force  or  violence,  or  without  putting  in  fear 
the  person  from  whom  the  property  is  stolen  and  taken,  has 
actually  so  stolen  and  feloniously  taken  the  property  from  such 
person,  and  that  no  one  can  be  held  as  an  aider  and  abettor 
of  the  crime  of  pocket-picking  unless  he  is  actually  present  and 
aids  and  abets  by  encouragement,  or  by  some  overt  act,  either 
before  or  at  the  time  of  the  commission  of  the  act. 

You  are  instructed  that  a  person  can  not  be  held  responsible 
as  an  aider  and  abettor  of  the  crime  of  pocket-picking  for  the 
mere  rendition  of  aid  and  assistance  to  one  who  has  committed 
the  crime,  immediately  thereafter,  unless  such  person  so  ren- 
dering such  assistance  to  the  one  who  committed  the  crime  has 
previously  entered  into  a  conspiracy  with  the  person  so  com- 
mitting the  crime,  aiding  and  encouraging  him  to  commit  it 
and  agreeing  to  aid  and  assist  such  person  to  successfully  carry 
it  out  by  getting  away  with  the  property  after  it  has  been 
feloniously  taken  from  the  person  of  another. 

If  you  entertain  a  reasonable  doubt  whether  the  defendant, 
did  enter  into  a  conspiracy  with  the  said  ,  by  which  he 


POCKET-PICKING.  1959 

aided  and  encouraged  her  to  commit  the  crime,  and  whether  he 
did  agree  to  assist  her  in  making  her  escape  with  the  money- 
after  she  had  stolen  or  taken  it  from  the  person  of  another; 
and  if  the  testimony  does  not  tend  to  support  the  claim  of  a 
conspiracy,  then  I  charge  you  that  the  mere  fact  that  he  did 
offer  and  render  her  some  assistance  after  she  had  stolen  and 

feloniously  taken  the  money  from  the  person  of  ,  if  you 

find  that  fact  to  be,  would  not  render  the  defendant  guilty  of 
aiding  and  abetting  the  said  as  charged  in  the  indict- 
ment. 

If  you  find  that  no  such   previous  conspiracy  was  entered 

into  by  the  defendant  and  ,  and  that  the  defendant  had 

no  knowledge  that  she  intended  to  commit  or  had  committed 
the  crime  of  pocket-picking,  if  you  find  that  she  did  commit  the 
crime,  but  that  the  defendant  did  assist  the  said in  mak- 
ing her  escape  from  the  said ,  if  you  so  find  the  fact  to 

be,  then  I  charge  you  that  the  law  is  that  the  defendant  under 
such  circumstances  would  not  be  liable  as  an  aider  and  abettor 
thereto,  and  it  would  be  your  duty  to  acquit  him. 

There  is  no  such  crime  in  Ohio  as  a  mere  accessory  after  the 
fact  to  any  crime;  there  is  no  liability  under  the  statute  of 
Ohio  touching  an  aider  and  abettor  for  an  act  committed  by  a 
person  in  giving  aid  to  one  who  has  committed  the  crime  of 
pocket-picking,  who  by  trick  or  artifice  feloniously  takes  prop- 
erty from  the  person  of  another. 

And  if  you  should  find  that  the  defendant  without  previous 
knowledge  and  conspiracy,  merely  aided  her  to  escape  from  tin- 
said  f  then  you  must  acquit  the  defendant. 

On  the  other  hand,  if  you  are  satisfied  beyond  a  reasonable 

doubt,  that  the  defendant  and did  enter  into  a  previous 

conspiracy  to  commit  the  crime  of  pocket-picking,  and  though 
the  defendant  was  not  present  at  the  time  the  property  was 
actually  taken  from  the  person,  if  such  the  fad  yon  find  to  be, 
but  that  he  was  so  near  that  he  was  able  to  render  the  Bald 

assistance,  and  did  so  render  her  assistance,  thus  enabling 

her  to  escape  and  get  away  from  the  said     ,  then  your 

verdict  should  be  one  of  conviction. 


1960  INSTRUCTIONS  TO  JURY. 

4.  Proof  of  conspiracy — By  circumstances.  You  are  in- 
structed, gentlemen,  that  the  law  does  not  require  that  a  con- 
spiracy shall  be  proved  by  direct  testimony,  but  the  same  may 
be,  and  is  generally,  established  by  circumstantial  evidence.  It 
is  not  necessary,  for  the  purpose  of  showing  the  existence  of  a 
conspiracy,  that'  the  state  should  prove  that  the  defendant  and 

came    together   and   actually    agreed   upon    a   common 

design  or  purpose.  It  is  sufficient  if  such  design  and  purpose 
is  shown  to  you  beyond  a  reasonable  doubt  by  circumstantial 
evidence. 

If,  after  a  candid  consideration  of  all  the  evidence  as  to  the 

conduct  and  acts  of  ,  and  if  from  declarations  of  the 

defendant  and  ,  you  are  satisfied  beyond  a  reasonable 

doubt,  that  they  were  actually  pursuing,  in  concert,  the  unlaw- 
ful object  stated  in  the  indictment,  whether  by  common  or 
different  means,  but  all  leading  to  the  unlawful  result,  then  you 
are  justified  in  finding  the  defendant  guilty  as  charged,  pro- 
viding you  find  that  the  crime  was  committed  as  alleged,  and 
that  the  defendant  participated  in  it  as  alleged  in  the  indict- 
ment. 

You  are  enjoined  to  consider  well  and  carefully  the  evidence 
in  connection  with  the  law  as  given  you  by  the  court.  If  you 
are  of  the  opinion,  beyond  a  reasonable  doubt,  that  there  was 
a  conspiracy  as  charged  herein,  and  you  find  all  the  other  facts 
in  accordance  with  these  instructions,  j^our  duty  is  plain. 

If,  after  a  careful  and  impartial  consideration  of  all  the  evi- 
dence, you  can  not  feel  that  you  have  an  abiding  conviction  of 
the  truth  of  the  existence  of  a  conspiracy  and  of  all  the  essential 
elements  to  warrant  a  conviction  of  guilt,  you  should  render  a 
verdict  of  acquittal, 
i  State  v.  W .,  Franklin  Co.  Com.  Pleas,  Ivinkead,  J. 

Sec.  2166.     Possession  of  property  recently  stolen  in  the  crime 
of  pocket-picking. 

You  are  instructed  that  the  unexplained  possession  of  prop- 
erty which  has  been  recently  stolen,  constitutes  in  law  prima 


POCKET-PICKING.  1961 

facie  evidence  of  larceny,  and  may  be  sufficient  to  warrant  the 
jury  in  inferring  that  a  person  charged  with  the  crime  merely 
of  larceny  is  guilty  thereof. 

In  this  case,  gentlemen,  the  defendant  stands  charged  with 
the  crime  of  pocket-picking,  that  is,  he  is  charged  in  the  indict- 
ment with  having  taken  the  watch  in  question,  without   force 

and  violence,  from  the  person  of  one and  without  putting 

said in  fear;    that  is,  that  he  feloniously  took  the  watch 

from  the  person  of stealthily ;  the  crime  of  pocket-pick- 
ing, therefore  includes  the  act  and  crime  of  larceny,  with  the 
act  of  stealthily  taking  property  from  the  person  of  another. 

If  you  find,  therefore,  that  the  said  had  his  watch 

feloniously  stolen  from  his  person,  by  stealth,  and  if  you 
further  find  that  the  defendant  had  possession  of  the  watch 
soon  after  it  was  stolen,  and  if  you  are  not  satisfied  beyond  a 
reasonable  doubt  that  he  has  not  given  a  satisfactory  explana- 
tion of  his  possession  of  the  watch,  if  you  find  that  he  had  pos- 
session of  it;  and  if  you  believe  beyond  a  reasonable  doubt 
that  his  possession  is  not  consistent  with  his  innocence,  then  and 
in  that  event  you  are  instructed,  that  while  sucb  possession  dm  s 
not  raise  a  presumption  of  law  that  he  is  guilty  of  the  crimi  of 
pocket-picking  as  charged  in  the  indictment,  yet  I  charge  yon 
that  such  possession  not  satisfactorily  explained,  is  competent 
evidence  to  be  considered  by  you,  in  connection  with  all  the 
other  facts  and  circumstances,  as  shown  in  the  evidence  as  bear- 
ing  upon  the  guilt  or  innocence  of  the  defendant,  and  you  may 
draw  such   inference   therefrom   as  you   deem    warranted    and 

proper. 

If  the  possession  of  the  watch  by  the  defendant  is  satisfactorily 
explained  and  accounted  for  by  him,  then  such  fad  of  explana- 
tion should  be  considered  by  you  along  with  all  the  other  Eacts 
and  circumstances  disclosed  by  the  evidence  touching  the  guilt 
or  innocence  of  the  defendant.1 
iMethard  v.  State,  19  O.  S.  363,  3  C.  C.  551,  17  C.  C.  486. 


CHAPTER   CXXVII. 
RAILROADS— AS  CARRIERS  OF  PASSENGERS. 


SEC. 

2167.  Relation   of   carrier   and   pas- 

"  senger  exists  when. 

2168.  Carrier  to  exercise  high  degree 

of  care. 

2169.  Passenger   must   observe   care 

for  his  own  safety. 

2170.  Not  bound  to  carry  passengers 

on  freight  train — Duty 
of  company  and  pas- 
senger  when   so   carried. 

2171.  Duty  to  furnish  safe  passage 

going  to  and  from  trains. 

2172.  When    failure    to    carry    pas- 

senger safely  is  shown, 
burden  cast  upon  carrier. 

2173.  Ticket   agents,    duty    and   au- 

thority—  Reliance  upon 
by   passenger. 

2174.  Duty  of  carrier  as  to  putting 

off  passenger  at  destina- 
tion not  stopping  place 
for  train — Authority  of 
local  ticket  agent  to  bind 
company. 

2175.  Right    to    eject    persons    for 

failure  to  pay  fare. 

2176.  Right  to  eject  passengers   for 

failure  to  pay  fare — Lia- 
bility if  unnecessary 
force  used — Drunken  or 
boisterous  passenger. 

2177.  Wrongful     ejection     of     pas- 

senger through  error  of 
judgment. 

2178.  Measure     of     damages     for 

wrongful  ejection  of  pas- 
senger. 

2179.  Duty  to  provide  safe  platform. 

2180.  Duty  of  carrier  to  passenger 

boarding    train. 
1962 


SEC. 

2181. 
2182. 

2183. 

2184. 
2185. 
2186. 
2187. 


Must  protect  passenger  from 
violence. 

Not  liable  for  assault  not 
committed  while  in  pros- 
ecution of  master's  busi- 
ness. 

Duty  to  stop  trains  at  sta- 
tions, and  of  passengers 
to  get  off. 

Duty  to  passenger  falling  from 
train. 

Duty  as  to  stopping  train  for 
passengers    to   alight. 

Contributory      negligence      of 


passenger. 
Contributory      negligence      of 
passenger  —  Another 
form. 

2188.  Right  of  passenger  to  remain 

in  waiting-room  a  rea- 
sonable time. 

2189.  Negligence     of     sleeping     car 

employee — Railroad  com- 
pany presumed  liable  for 
injury — Burden  of  proof. 

2190.  Injury  to  conductor  riding  on 

train  other  than  his  own 
with  consent  of  conduc- 
tor  in    sharge. 

2191.  Liability    for    injury    to    pas- 

senger while  assisting  in 
caring  for  sick  pas- 
senger— Whether  plain- 
tiff was  directed  or  per- 
mitted to  assist  in  caring 
for  passenger — Duty  of 
company  towards  sick 
passenger.  \  See  addi- 
tional headings  in  text.] 


RAILROADS AS  CARRIERS  OF  PASSENGERS.         1963 

Sec.  2167.     Relation  of  carrier  and  passenger  exists,  when. 

The  jury  is  instructed  that  the  responsibility  of  the  carrier 
towards  the  passenger  begins  when  he  presents  himself  for 
transportation ;  it  is  not  necessary  that  the  passenger  shall  have 
actually  purchased  a  ticket  to  create  the  relationship;  the 
person  intending  to  become  a  passenger  becomes  one,  and  en- 
titled to  all  the  rights  as  such,  when  he  approaches  the  place 
of  reception  for  that  purpose;  and  if  you  find  from  the  evi- 
dence that  the  plaintiff  approached  the  depot  and  informed  the 
ticket  agent  of  his  intention  and  desire  to  become  a  passenger, 
and  the  station  agent  directed  him  about  the  trains,  you  may 
then  find  that  the  relation  of  passenger  and  carrier  begins.1 

i  Allender  v.  R.  R.  Co.,  37  la.  270;  Cooley  on  Torts,  770  (644).  Purchase 
of  ticket  or  payment  of  fare  not  necessary  to  create  relation. 
Wood's  Ry.  Law,  p.  1205. 

Sec.  2168.     Carrier  to  exercise  high  degree  of  care. 

The  jury  are  instructed  that  railroads  are  public  carriers, 
and  that  it  is  their  duty  as  common  carriers  of  passengers  to 
use  the  highest  degree  of  care  towards  their  passengers;  they 
must  do  all  that  human  care,  vigilance,  and  foresight  can  do 
under  the  circumstances,  and  in  view  of  the  character  of  the 
mode  of  conveyance  adopted,  reasonably  to  guard  against  acci- 
dents and  consequential  injuries,  and  if  they  neglect  to  do  so, 
they  are  to  be  held  strictly  responsible  for  all  consequences 
which  flow  from  such  neglect.1 

"The  company  is  not  an  insurer  of  the  absolute  safety  of  the 
passengers  as  it  is  of  goods  which  it  undertakes  to  carry,  but 
it  is  bound  to  exercise  the  highest  degree  of  care  to  Becure  the 
safety  of  the  passenger,  and  is  responsible  for  the  slightesl  neg- 
lect resulting  in  injury  to  the  passenger;  and  this  can'  applies 
to  the  safe  and  proper  construction  and  equipmenl  of  the  road, 
the  employment  of  skillful  and  prudent  operatives,  an. I  the 
faithful  performance  by  them  of  their  respective  duties." 

iTuller  v.  Talbot,  23  Til.  358;  Railroad  v.  Manson,  3D  0.  B.  451. 

2  Ex.  R.  R.  Co.  v.  Dickeraon,  .")!)  Ind.  321. 


1964  INSTRUCTIONS  TO  JURY. 

Sec.  2169.     Passenger  must  observe  care  for  his  own  safety. 

The  jury  is  instructed  that  the  law  makes  it  the  duty  of  a 
passenger,  while  traveling  on  the  train,  to  exercise  ordinary  care 
and  caution  to  avoid  the  injuries  incident  to  that  mode  of 
travel.  In  legal  contemplation  he  expects  to  take,  and  does 
take  upon  himself,  the  hazards  of  such  danger  as  may  occur  to 
him  without  any  want  of  care  or  diligence  on  the  part  of  the 
company  and  its  operatives.1 
i  From  Ohio  &  M.  Ry.  v.  Dickerson,  59  Ind.  321. 

Sec.  2170.  Not  bound  to  carry  passengers  on  freight  trains — 
Duty  of  company  and  passenger  when  so 
carried. 
A  railroad  company  is  under  no  legal  obligation  to  transport 
passengers  on  its  freight  trains.  The  company  confines  its  car- 
riage of  passengers  to  regular  passenger  trains,  and  its  carriage 
of  goods  to  its  freight  trains.  But  when  the  company  assumes 
to  carry  passengers  upon  its  freight  trains,  it  is  not  bound  to 
furnish  to  the  passengers  the  same  comforts  and  conveniences 
which  are  enjoyed  on  a  regular  passenger  coach;  but  whether 
a  railroad  company  undertakes  to  convey  its  passengers  on  a 
freight  or  passenger  train,  in  a  caboose  or  well-cushioned  chairs, 
its  duty  is  so  to  run  and  manage  the  train  that  passengers  shall 
not,  by  its  own  carelessness,  be  killed  or  injured.  On  the  other 
hand,  he  is  presumed  to  knoAv  the  manner  in  which  such  trains 
are  ordinarily  operated,  and  to  assume  any  additional  risk,  aside 
from  the  negligence  of  the  company,  to  which  he  may  be  ex- 
posed in  consequence  of  his  riding  on  a  freight  train.1 

lFrom  0.  &  M.  R.  R.  Co.  v.  Dickerson,  59  Ind.  322,  56  Ind.  511,  26  111. 
373,   53   111.   397,   58   Me.    187,   39  X.   Y.   227. 

Sec.  2171.  Duty  to  furnish  safe  passage  going  to  and  from 
trains. 
It  was  the  duty  of  the  defendant  company,  as  a  common 
carrier  of  passengers,  to  furnish  a  reasonably  safe  passage  for 
its  passengers  going  to  and  from  its  trains.  And  the  law  im- 
poses an  obligation  on  the  part  of  the  railroad  company  to  take 


RAILROADS — AS  CARRIERS  OF  PASSENGERS.        1965 

reasonable  care  that  a  person  holding  the  relation  of  passenger 
going  to,  or  coming  from,  its  trains  shall,  while  thus  on  its 
premises,  be  exposed  to  no  unnecessary  danger,  or  one  of  which 
it  is  aware,  and  requires  it  to  provide  for  such  passengers  a 
reasonably  safe  passage  to  and  from  said  trains.  If  you  find 
from  the  evidence  that  the  plaintiff,  at  the  time  of  the  injury, 
was  returning  from  a  train  of  the  defendant's  cars,  where  she 
had  lawfully  ridden,  she  would  be  entitled  to  such  protection 
from  injury  while  on  the  railroad  company's  platform  as  men 
of  ordinary  care  and  prudence  would  be  accustomed  to  give 
persons  under  like  or  similar  circumstances.1 

i  Nye,  J.,   in   Clark  v.  N.  Y,  P.  &  0.  R.  R.  Co..  Medina  county. 

A   common   carrier    is   liable   for   any   injury    resulting    from    the    slightest 

motion  of  his  vehicle  during  the  entrance   or   exit  of   a   passenger. 

Mulhado   v.   Brooklyn,  etc.,   R.  R.   Co.,   30   N.   Y.   370;    Sherman    & 

Redfield   on   Negligence,   sec.   508. 

Sec.  2172.     When  failure  to  carry  passenger  safely  is  shown, 
burden  cast  upon  carrier. 

"It  being  admitted  that  the  defendant  is  a  carrier  of  passen- 
gers, that,  on  the  occasion  mentioned  in  the  petition,  the  plain- 
tiff was  a  passenger  on  defendant's  train,  having  paid  his  fan', 
it  was  the  duty  of  defendant  to  carry  him  safely  to  {lie  point 
of  his  destination  without  injury;  and  when  it  is  shown  that 
the  defendant  failed  to  carry  the  plaintiff  safely  to  the  place 
of  his  destination,  this  failure  puts  the  defendant,  prima  facie, 
in  the  wrong,  and  the  burden  of  proof  devolves  upon  it  to  show 
that  the  injury  was  the  result  of  a  pure  accident,  ami  that  it 
could  not  have  been  prevented  by  the  exercise  of  the  utmost  'ire 
and  skill  which  prudent  men  are  accustomed  to  employ  under 
similar  circumstances."1 
i  From  Railroad  Co.  v.  Mowery,  31)  O.  S.  418. 

Sec.  2173.     Ticket  agent's  duty  and  authority — Reliance  upon 

by  passenger. 

The  jury  is  instructed  that  it  is  the  duty  of  a  ticket  agent  <>l" 

a  railroad,  and  it  is  within  the  scope  of  his  authority,  to  give 

passengers  correct  information  with  regard  to  their  tickets,  and 


1966  INSTRUCTIONS  TO  JURY. 

to  provide  them,  upon  payment  of  the  fare,  with  proper  tickets. 
A  passenger  is  justified  and  has  the  right  to  rely  upon  informa- 
tion given  him  by  the  ticket  agent.  Such  passenger  is  not  con- 
cerned with  the  management  of  the  affairs  of  railroad  companies, 
and  is  not  presumed  to  know  the  rules  and  regulations  adopted 
by  the  companies  for  the  guidance  of  such  agents;  nor  is  a 
passenger  presumed  to  know  the  limitations  of  the  authority 
of  the  agents.  On  the  contrary,  a  passenger  has  the  right  to 
rely  upon  the  statements  and  assurances  of  a  ticket  agent  as 
to  the  sufficiency  of  a  ticket  furnished  him  as  evidence  of  his 
rights  as  a  passenger,  the  carrier  being  responsible  for  the 
errors  and  omissions  of  an  agent  resulting  in  injury  to  the 
passenger.1 

So,  therefore,  etc. 

i  Smith  v.  Railroad,  88  S.  C.  421,  70  S.  E.  1057,  34  L.  R.  A.   (N.S.)   708, 
Am.  Ann.  Cas.   1912,  C.  p.  730. 

Sec.  2174.  Duty  of  carrier  as  to  putting  off  passenger  at  des- 
tination not  stopping  place  for  train — Au- 
thority of  local  ticket  agent  to  bind  company. 

The  jury  is  instructed  that  if  a  traveler,  in  the  absence  of 
an  agreement  or  arrangement,  or  without  acting  upon  informa- 
tion furnished  by  some  authorized  agent  of  the  company,  takes 
passage  upon  a  train  that  is  scheduled  not  to  stop  at  the  station 
to  which  he  desires  to  go,  he  can  not  recover  damages  in  an 
action  if  it  fails  to  stop  at  such  station,  because,  unless  acting 
under  an  agreement  or  arrangement  or  upon  information  furn- 
ished by  the  company,  the  traveler  must  inform  himself  of  the 
arrival  and  departure  of  trains  and  the  places  at  which  they 
will  and  will  not  stop. 

The  jury  is  instructed  that  an  agent  of  a  railroad  company 
in  charge  of  one  of  its  passenger  stations  at  which  tickets  for 
transportation  of  passengers  are  sold  has  authority  on  behalf 
of  the  company  to  agree  with  and  furnish  information  to  per- 
sons who  desire  to  become  passengers,  that  a  train  not  scheduled 
to  stop  at  a  designated  station  will  stop  there  for  the  purpose 
of  permitting  them  to  get  on  or  off,  the  company,  will  be  bound 


RAILROADS — AS  CARRIERS  OF  PASSENGERS.        1967 

by  his  representations,  unless  it  is  shown  that,  the  person  with 
whom  he  made  the  agreement  or  to  whom  he  gave  the  informa- 
tion knew  that  it  was  not  within  the  power  or  authority  of  the 
agent  to  make  the  agreement  or  give  the  information,  or  unless 
the  ticket  on  its  face  furnished  advice  sufficient  to  put  a  reason- 
ably careful  and  prudent  person  upon  notice  that  the  informa- 
tion furnished  or  the  agreement  made  by  the  agent  was  incor- 
rect or  in  excess  of  his  authority.1 

But  if  the  agent  of  the  railroad  company  has  implied  author- 
ity to  act  for  it,  and  does  make  an  agreement  or  representation 
in  violation  of  its  rules,  or  in  disobedience  of  its  orders,  or  fails 
or  neglects  to  procure  the  necessary  authority  to  do  what  he 
agreed  or  represented  should  be  done,  it  is  the  fault  of  the 
agent  and  not  the  passenger,  and  the  company  as  between  the 
passenger  and  it  must  suffer  the  consequences  of  its  agent's 
negligence  or  want  of  power.2 

If  the  jury  find,  therefore,  etc. 

i  L.  &  N.  Ry.  v.  Scott.  141  Ky.  538,  133  S.  W.  800,  Am.  Ann.  Cas.  1912,  C. 
2  Id,     Penn.  R.  Co.  v.  Reynolds,  55  0.  S.  370,  60  Am.   St.   706. 

Sec.  2175.    Right  to  eject  persons  for  failure  to  pay  fare. 

The  jury  is  instructed  that  a  common  carrier  has  the  un- 
doubted right'  to  eject  and  expel  any  persons  from  its  cars  who 
refuse  to  pay  the  legal  fare.  Necessarily  that  inherent  power 
is  invested  in  the  conductor  employed  by  the  company  and 
placed  by  it  in  charge  of  the  train  or  car.1 
i  Cinti.  Northern  Tr.  v.  Rosnagle,  84  0.  S.  639,  Am.  Ann.  Cas.  1912,  C.  639. 

Sec.  2176.  Right  to  eject  passenger  for  failure  to  pay  fare — 
Liability  if  unnecessary  force  used — Drunken 
or  boisterous  passenger. 

"The  jury  are  instructed  that  if  they  believe  from  the  testi- 
mony that  the  plaintiff  did  not  pay.  or  offer  to  pay  the  con- 
ductor in  charge  of  the  train,  his  fare  from  C.  to  W.,  or  place 
of  destination,  and  refused  to  pay  the  Bame  <>n  being  requested 
so  to  do,  then  the  conductor  was  justified  in  putting  plaintiff 


1968  INSTRUCTIONS  TO  JURY. 

off  the  train,  and  using  only  the  necessary  force  to  do  so,  at 
some  regular  station,  or  near  some  dwelling-house,  as  the  con- 
ductor should  elect.  Yet  if  the  jury  further  believe  from  the 
testimony  that  the  conductor  and  others,  agents  and  servants 
of  the  defendant,  acting  under  orders  from  the  conductor,  forc- 
ibly put  plaintiff  off  from  the  train,  and  in  so  doing  used  un- 
necessary force,  and  unnecessarily  beat,  kicked,  and  bruised 
plaintiff  while  he  was  so  on  the  train,  then  the  jury  will  find 
for  the  plaintiff  and  assess  his  damages  at  such  sum  as  they 
believe  from  the  evidence  to  be  a  just  compensation  for  the 
injuries  sustained.     *     *     *"1 

The  defendant  company  had  a  right  to  prescribe  rates  for 
prepurchascd  tickets,  and  car  rates  when  tickets  were  not  pur- 
chased, for  distances  less  than  eight  miles,  and  more  than  six 
miles,  provided  that  neither  of  such  rates  exceeded  the  maximum 
rate  allowed  by  law.  Where  a  passenger  enters  the  cars  with- 
out having  purchased  a  ticket,  and  when  payment  of  the  fare 
is  demanded,  is  persistently  refused,  after  giving  such  person  a 
reasonable  time  to  determine  whether  or  not  he  will  pay,  such 
person  has  no  right  to  remain  on  the  train,  or  to  claim  the 
rights  of  a  passenger,  but  may  be  treated  as  a  trespasser.  The 
.onductor  may  lawfully  eject  such  a  person,  provided  he  uses 
no  unreasonable  violence  and  does  not  expel  him  at  a  place 
where  he  would  be  exposed  to  serious  injury  or  danger.2 

It  is  not  only  the  right,  but  the  duty  of  a  conductor  to  expel 
from  a  train  a  drunken,  unruly,  boisterous  passenger,  but  when 
such  a  person  endangers  by  his  acts  the  lives  of  other  passen- 
gers, it  is  the  duty  of  the  conductor  to  remove  such  passenger 
to  protect  others  from  violence  and  danger.  This  right  must 
be  reasonably  exercised,  and  not  so  as  to  inflict  wanton  or 
unnecessary  injury  upon  the  offending  passenger,  nor  so  as  to 
needlessly  place  him  in  circumstances  of  unusual  peril.3 

i  From  Perkins  v.  R.  E.  Co.,  55  Mo.  201,  208.  Company  may  make  rule 
requiring  conductor  to  eject  passenger  for  non-production  of  ticket, 
26  O.  S.  580,  29  O.  S.  219,  56  N.  Y.  296.  For  full  discussion  see 
Kinkead's  Pig.,  sees.  230,  231.  Unreasonable  violence  must  not  be 
used,  or  be  must  not  be  ejected  at  a  place  of  danger,  39  0.  S.  453. 


RAILBOADS — AS  CARRIERS  OF  PASSENGERS.        1969 

^  Railroad  v.  Skillman,  39  O.  S.  444. 

3  Railway  v.  Valleley,  32  O.  S.  345.     Common  carrier  may  refuse,  without 

liability,  to  carry  a  person  intoxicated.     Pittsburg,   etc.,  R.  R.  Co. 

v.   Vandyne,   57    Ind.    576.     Neither    is  he   bound   to   carry   anyone 

wUose  conduct   is   riotous  or   boisterous.     Wood   on   Railroads,   sec. 

297. 


Sec.  2177.     Wrongful  ejection  of  passenger  through  error  of 
judgment. 

The  jury  is  instructed  that  if  a  common  carrier  wrongfully 
expels  one  who  is  entitled  to  the  rights  of  a  passenger,  it  is 
liable  even  though  such  expulsion  is  done  through  an  error  of 
judgment  on  the  part  of  the  conductor  in  charge  of  the  train 
or  car. 

If  a  passenger  tenders  to  the  conductor  a  genuine  coin  of  the 
United  States,  not  so  worn,  defaced,  or  mutilated  hut  that  its 
mint  marks  are  plainly  discernible  and  not  appreciably  dimin- 
ished in  weight,  and  such  tender  is  refused  and  the  passenger 
ejected  on  refusal  to  pay  in  other  money,  such  passenger  is 
entitled  to  recover  damages  against  the  company,  even  though 
the  conductor  in  good  faith  believed  the  coin  to  be  counterfeit, 
or  not  a  sufficient  coin.1 

So  if  the  jury  find,  etc. 

i  Cinti.  Northern  Tr.  Co.  v.  Rosnagle,  84  O.  S.  310,  Am.  Ann.  Cas.  1912, 
C.  p.  639,  note. 

Sec.  2178.  Measure  of  damages  for  wrongful  ejection  of  pas- 
senger. 
The  measure  of  damages  to  which  plaintiff  is  entitled  in  case 
the  jury  find  in  his  favor  is  compensatory  in  character;  thai  is, 
such  compensation  as  will  be  a  reasonable  redress  tor  his  injury. 
If  it  should  appear  from  the  evidence  that  the  conductor  used 
more  force  than  was  reasonably  necessary  to  require  the  plain- 
tiff to  leave  the  train,  or  if  the  conduct,  manner  or  Language 
of  the  conductor  was  insulting,  or  abusive,  or  violenl  or  threat- 
ening,  or  if  his  behavior  manufested  a  wanton  and   reckless 


1970  INSTRUCTIONS  TO  JURY. 

disregard  of  the  rights  of  the  plantiff,  the  latter  will  then  be 
entitled  to  punitive  damages,  in  addition  to  compensatory  dam- 
ages.1 

i  L.  &  N.  R.  R.  Co.  v.  Scott,  141  Ky.  538,  133  S.  W.  800,  Am.  Ann.  Cas. 
1912,  C.  547. 

Sec.  2179.     Duty  to  provide  safe  platform. 

"It  is  the  duty  of  the  defendant  to  have  its  platform  reason- 
ably sufficient  and  safe  in  all  respects,  to  be  used  by  such  per- 
sons as  may  have  lawful  occasion  to  use  it.  It  is  not  necessary 
that  it  should  be  perfectly  and  absolutely  safe;  so  great  a 
degree  of  perfection  is  usually  impracticable;  but  it  must  be 
reasonably  safe  and  sufficient  for  all  persons  using  it,  who  are 
themselves  in  the  exercise  of  ordinary  and  reasonable  care.  If 
a  barrier  or  guard  is  reasonably  necessary  to  prevent  persons, 
who  are  themselves  in  the  exercise  of  ordinary  and  reasonable 
care,  from  falling  from  the  platform  to  their  injury,  then  a 
barrier  should  be  placed  upon  it,  or  a  guard  should  be  placed 
to  warn  people  of  danger.  Such  lights  as  are  necessary  to 
render  the  use  of  the  platform  and  the  passage  over  it  to  the 
cars  reasonably  safe  should  be  upon  the  platform,  at  the  plat- 
form, at  the  time  of  the  arrival  of  trains,  and  during  the  time 
the  trains  remain  at  the  station."1 
i  Ex  Quaife  v.  R.  R.  Co.,  48  Wis.  516. 

Sec.  2180.     Duty  of  carrier  to  passenger  boarding  train. 

"It  is  the  duty  of  a  railroad  company  to  use  due  care,  not 
only  in  conveying  its  passengers  upon  their  journey,  but  also 
in  all  preliminary  matters,  such  as  their  reception  into  the  car, 
and  their  accommodation  while  waiting  for  it;  and,  whether 
bound  to  render  assistance  in  taking  passengers  aboard  its  cars 
or  not,  it  is  liable  for  the  consequences  of  negligence  in  giving 
directions  to  passengers  as  to  the  mode  of  entering.  Whether 
it  was  the  duty  of  defendant's  agent  to  have  assisted  plaintiff 
in  getting  on  the  car  is  a  question  for  you  to  consider  and  deter- 


RAILROADS — AS  CARRIERS  OF  PASSENGERS.        1971 

mine  from  the  evidence  in  the  ease;  and  for  this  purpose  it  is 
proper  for  you  to  consider  the  train  and  the  car,  their  distance 
from  the  platform  and  depot,  the  facility  with  which  access 
could  be  had,  the  sex,  age,  and  inexperience  of  the  plaintiff, 
if  these  were  known  to  defendant's  agents,  and  all  the  facts 
and  circumstances  surrounding  the  case.  When  the  carrier  of 
passengers  by  railway  does  not  receive  passengers  into  the  car 
at  the  platform  erected  for  that  purpose,  and  suffers  or  directs 
passengers  to  enter  at  out  of  the  way  places,  it  is  its  duty  to 
use  the  utmost  care  in  preventing  accidents  to  passengers  while 
so  entering."1 

i  From  Allender  v.  R.  R.  Co.,  43  la.  277. 

As  to  duty  to  aged  and  infirm  persons,  Sher.  &  Red.  Negligence,  sec. 
508,  1  How.  Pr.  (N.S.)  67;  Wood  on  Railways,  sec.  1363.  Com- 
pany must  stop  car  at  platform  and  must  furnish  proper  platform 
for  passengers.     Sher.  &  Red.  Negligence,  sec.  510. 

Sec.  2181.     Must  protect  passenger  from  violence. 

The  defendant  company  must  carry  its  passengers  safely  and 
properly,  and  the  duty  to  so  carry  its  passengers  safely  extends 
still  further.  There  rests  on  the  carrier  the  obligation  and 
duty  to  protect  its  passengers  from  violence;  if  such  violence 
can  not  be  prevented  by  the  highest  degree  of  care,  the  carrier 
can  not  then  be  held  responsible;  if  the  carrier  has  used  the 
care  which  the  law  requires — that  is,  the  highest — then  it  is 
not  liable.  A  carrier  is  responsible  for  injuries  willfully  or 
carelessly  inflicted  upon  passengers  by  its  servants  engaged  to 
the  performance  of  duties  within  the  general  scope  <>f  their  em- 
ployment, whether  the  particular  act  was  or  was  doI  authorized 
by  the  master.  The  defendant  is  not  an  insurer  of  H"'  safety 
of  its  passengers  against  all  the  risks  of  travel,  hut  is  bound 
to  use  the  highest  degree  of  care,  and  when  that  is  done,  thai 
is  all  that  the  law  may  exact  of  them.1 

iSee  Sherlock  r.  Ailing,  44  Ind.  184:  L.  &  C.  R.  Co.  0.  Kelly.  92  1ml. 
372.  Some  authorities  Beem  in  hold  the  carrier  responsible  for 
"violence  and  insults  from  whatsoever  source  arising."  Goddard 
v.  R.  R.  Co.,  57  Me.  202,  2  Am.  Rep.  3!». 


1972  INSTRUCTIONS  TO  JURY. 

Sec.  2182.     Not  liable  for  assault  not  committed  while  in  the 
prosecution  of  master's  business. 

The  jury  is  instructed  that  an  employer  is  not  liable  for  a 
willful  injury  done  by  an  employee,  though  committed  while 
in  the  master's  business  or  while  in  the  course  of  the  employ- 
ment, unless  the  employee's  purpose  was  to  serve  his  employer 
by  his  willful  act.  Where  the  employee  is  not  acting  within 
the  course  of  his  employment,  the  employer  is  not  liable  for  his 
acts.  A  master  holds  out  his  agent  as  competent  and  fit  to  be 
trusted,  and  thereby,  in  effect  warrants  his  fidelity  and  good 
conduct  in  all  matters  within  the  scope  of  his  agency.  But  he 
does  not  and  should  not  be  held  to  warrant  his  servant's  con- 
duct in  matters  outside  of  the  scope  of  that  agency.  In  other 
words,  he  can  not  be  held  to  be  an  insurer  in  matters  not  relat- 
ing to  the  conduct  of  the  master's  business.  Hence  a  master 
is  not  liable  for  an  assault  by  his  servant  upon  a  third  person, 
where  the  act  is  not  committed  in  the  prosecution  of  the  master's 
business.  So,  when  there  is  no  original  liability  for  the  act  of 
the  servant,  the  master  does  not  become  liable  merely  because 
he  thereafter  retains  the  servant  in  his  employ.  A  master  is 
not  therefore  liable  for  an  assault  not  committed  in  the  master's 
business  merely  because  he  retains  him  in  his  employ.1 

i  Everingham    v.    Railroad,    148    Iowa.    6G2.    127    N.    W.    1009.    Am.    Ann. 
Cas.    1012,   C.    848. 

Sec.  2183.    Duty  of  to  stop  its  trains  at  stations,  and  of  pas- 
sengers to  get  off. 

The  jury  is  instructed  that  it  is  the  duty  of  a  railroad  com- 
pany to  stop  its  train  at  the  station  a  reasonable  length  of  time 
to  afford  passengers  for  that  station  an  opportunity  to  alight 
in  safety ;  and  for  negligence  in  that  respect,  resulting  in  injury 
to  such  passenger,  the  company  is  liable. 

It  is  equally  the  duty  of  the  passenger,  when  he  knows  that 
the  train  has  stopped  at  the  station  where  he  desires  to  alight, 
to  do  so  with  reasonable  promptness.  The  length  of  time  the 
train  may  stop  may  necessarily  vary  with  the  circumstances. 


RAILROADS AS  CARRIERS  OP  PASSENGERS.  L973 

It  will  require  more  time  for  many  passengers  to  get  off  or  on 
a  train  than  it  will  a  few. 

If  the  jury  finds  from  the  evidence  that  the  train  was  stopped 
for  a  reasonable  time  to  afford  plaintiff  an  opportunity  to  alight 
in  safety,  the  law  is  that  those  in  charge  of  the  train  have  the 
right  to  assume  that  plaintiff  availed  herself  of  the  opportunity, 
and  had  performed  her  duty  to  alight  with  reasonable  diligence; 
they  were  not,  under  such  circumstances,  required  to  ascertain 
whether  plaintiff  had  alighted  or  not,  and  the  company  would 
not  be  guilty  of  negligence  in  starting  the  train  after  having 
allowed  such  reasonable  time,  unless  there  was  something  under 
the  circumstances,  and  appearing  in  the  evidence,  to  indicate  to 
the  agents  in  charge  of  the  train  or  car,  or  cause  them,  iu  the 
exercise  of  reasonable  diligence,  to  suspect  that  plaintiff  had 
not  gotten  off,  or  was  in  the  act  of  so  doing,  or  was  otherwise 
in  a  position  of  danger  if  the  train  should  be  started.1 

So,  therefore,  if  the  jury  find.  etc. 

i  Railroad  v.  Lampman,  18  Wyo.   106,  104  Pac.  533,  Am.  Ann.  Cas.   1012. 
C.  788. 

Sec.  2184.    Duty  to  passenger  falling  from  train. 

If  a  company  has  notice  that  one  of  its  passengers  has  fallen 
from  the  end  of  its  train,  the  duty  is  incumbent  upon  it  to  exer- 
cise due  care  to  prevent  his  death  or  injury  from  a  following 
train,  and  its  failure  thus  so  to  do  renders  it  liable  if  death 
is  caused  by  a  following  train  running  over  such  passenger 
while  he  lay  unconscious  or  helpless  on  or  near  the  track.1 

The  case  is  narrowed,  then,  to  the  question  whether  two  facts 
exist.  First:  was  the  death  of  this  young  man  caused  by  a 
fall  from  the  first  train,  or  was  it  caused  by  the  train  which 
ran  over  his  body?  If  it  was  caused  by  the  first  train,  or  if 
by  the  fall  he  was  put  in  such  a  condition  thai  liis  death  im 
mediately  ensued,  or  must  have  ensued  from  the  injury  thus 
sustained,  then  the  plaintiff  can  not  recover.  If  you  And  thai 
by  the  fall  the  death  was  not  caused,  and  would  not  have  ensued, 
but  that  the  death  was  because  of  the  train  which  followed,  then 


1974  INSTRUCTIONS  TO  JURY. 

you  will  proceed  to  try  the  question,  what  notice  the  railroad 
company  had  of  the  actual  condition  of  that  young  man  upon 
the  track.  Notice  to  the  brakesman  would  be  notice  to  the 
company.  It  must  be  actual  notice  to  the  brakesman.  He  must 
have  heard  from  someone,  or  must  have  seen  that  the  young 
man  would  be  likely  to  be  in  the  condition  in  which,  at  this 
point,  if  you  reach  this  point  in  the  case,  you  must  find  that  he 
actually  was  upon  the  track.  You  must  determine  as  to  the 
sufficiency  of  the  notice  from  the  circumstances  in  the  case,  as 
to  where  the  notice  was  given,  under  what  circumstances,  the 
rapidity  with  which  the  train  was  proceeding,  and  all  those 
circumstances  which  you  may  find  to  have  been  presented  to 
the  brakesman,  if  you  do  find  that  they  were  presented,  and 
then  judge  if,  from  the  facts  thus  presented,  a  brakesman  of 
ordinary,  average  intelligence  and  prudence  would  conclude  that 
K.  was  in  a  condition  upon  the  track,  or  so  near  the  track  as 
that   injury   would  necessarily  follow  from  a   following  train.2 

i  From  Railroad  Co.  v.  Kassen,  49  0.  S.  230. 

2\Vm.  H.  Taft,  J.,  in  C.  H  &  D.  R.  R.  Co.  r.  Kassen,  49  0.  S.  230. 
Notice  to  brakeman  in  such  case  is  notice  to  the  company.  R.  R. 
v.  Ranney,  37  Ohio  St.  665,  30  Ohio  St.  451.  As  to  duty  and  care 
in  such  case,  see  Kerwhacker  v.  R.  R.,  3  Ohio  St.  172. 

Sec.  2185.     Duty  as  to  stopping  train  for  passengers  to  alight. 

(The  negligence  charged  is  that  plaintiff  was  not  allowed 
proper  and  reasonable  time  and  opportunity  to  alight  from  the 
train  at  F.  station.) 

If  the  train  stopped  at  F.  station  at  all,  then  it  was  the  duty 
of  the  servants  and  agents  of  defendant  to  stop  long  enough  to 
allow  all  passengers  for  that  station  to  have  a  reasonable  time 
and  opportunity  to  alight  from  that  train.  If  it  did  not  stop 
at  all,  then  plaintiff  would  have  no  right  to  try  to  get  off  a 
moving  train 

Now,  that  is  a  question  of  fact  for  you  to  determine  from 
the  evidence,  whether  the  train  stopped,  and  whether  passen- 
gers were  allowed  a  reasonable  time  and  opportunity  to  alight' 
from  the  train  with  safety.     If  the  plaintiff  has  established  that 


RAILROADS AS  CARRIERS  OF  PASSENGERS.        1975 

fact  by  a  preponderance  of  the  evidence,  and  the  evidence  shows 
that  the  train  did  stop,  and  if  plaintiff  lias  established  by  a 
preponderance  of  the  evidence  that  he  was  not  allowed  a  rea- 
sonable time  and  opportunity  to  alight  from  that  train,  he  has 
made  out  one  branch  of  the  case,  and,  in  the  absence  of  any 
other  testimony,  is  entitled  to  recover.  If  you  find  that  plain- 
tiff was  allowed  a  reasonable  time  and  opportunity  to  alight 
safely  from  the  train,  of  course  that  is  the  end  of  the  case,  and 
your  verdict  should  be  for  the  defendant  without  further  in- 
quiry. 

But,  if  the  evidence  discloses  that  the  train  stopped  and 
he  was  not  allowed  a  reasonable  time  and  opportunity  to  alight 
in  safety,  and  he  was  thereby  injured,  then,  in  the  absence  of 
other  testimony,  he  would  be  entitled  to  recover.  If  it  be  estab- 
lished, however,  gentlemen,  that  the  train  did  stop,  it  is  for  you 
to  determine  from  the  evidence  what  was  a  reasonable  time  and 
opportunity  for  him  to  safely  alight. 

If  they  stopped,  but  did  not  stop  a  sufficient  length  of  time 
to  allow  plaintiff  to  alight  from  the  train,  and  he  was  thereby 
injured,  that  would  be  negligence  on  their  part  which  would 
make  the  company  liable,  unless  the  party  injured  was  guilty 
of  negligence  on  his  part.1 

i  From  C,  H.  V.  &  T.  Ry.  Co.  v.  Newell,  supreme  court.  No.   1313;    12478. 

Price,  J. 
A  carrier  must  allow  his  passengers  a  reasonable  time  in  which  to  get  on 

and    off    the   vehicle.     E.    Bondorf   v.   Brooklyn,    etc.,    R.    R.,    6!)    N. 

Y.  195;   Fairmount,  etc.,  R.  R.  r;  Stutter,  54  Pa.  St.  375. 

Sec.  2186.     Contributory  negligence  of  passenger. 

"Although  the  defendant  did  not  exercise  the  degree  of  care 
required  of  it,  yet,  if  the  plaintiff  was  also  in  fault,  and  thai 
fault  contributed  directly  to  produce  the  injury,  he  can  nol 
recover.  His  right  to  recover,  however,  is  not  affected  by  his 
having  contributed  to  the  injury,  unless  he  was  in  fault  in  so 
doing."1 
i  From  Railroad  Co.  v.  Mowery,  36  0.  S.  418. 


1976  INSTRUCTIONS  TO  JURY. 

Sec.  2187.     Contributory    negligence    of    passenger — Another 
form. 

You  will  then  inquire  whether  or  not  plaintiff  was  guilty  of 
any  want  of  care,  or  guilty  of  contributory  negligence,  whether 
he  contributed  to  his  own  injury  by  want  of  care. 

If  the  train  stopped,  they  must  have  stopped  a  reasonable 
length  of  time,  and  if  they  did  not  stop  at  all,  then  he  would 
have  had  no  right  to  try  to  alight  from  the  moving  train,  and 
if  he  did  so,  or  attempted  to  do  so,  he  would  be  guilty  of  con- 
tributory negligence,  and  it  would  preclude  his  recovering,  and 
it  makes  no  difference  that  he  would  be  put  to  inconvenience 
by  being  carried  past  the  station,  because  he  was  bound  to  exer- 
cise ordinary  care  and  prudence,  and  it  would  not  be  ordinary 
care  and  prudence  to  attempt  to  get  off  from  a  moving  train, 
so,  if  you  find  that  he  did  so,  he  ought  not  to  recover,  because 
guilty  of  contributory  negligence ;  and  if  be  passed  out  from 
the  coach  and  upon  the  platform  intending  to  alight  from  the 
train,  and  the  servants  and  agents  of  the  company  did  not.  give 
sufficient  time  for  him  to  alight  from  the  train,  and  then  he 
attempted  to  alight  while  it  was  moving,  in  that  case  he  would 
be  guilty  of  contributory  negligence  which  would  preclude  his 
right  of  recovery.  If  he  passed  out  of  the  coach  and  upon  the 
platform,  and  the  train  passed  on  before  he  had  time  to  alight, 
it  was  his  duty,  as  soon  as  he  reasonably  could,  to  return  to  the 
coach,  and  if  he  failed  to  do  so,  and  for  that  reason  was  thrown 
from  the  train  while  it  was  in  motion,  he  would  be  guilty  of 
contributory  negligence;  but  if  he  passed  out  of  the  coach  and 
upon  the  platform,  and  the  train  moved  on  before  he  had  a 
reasonable  opportunity  to  return  to  the  coach,  and  he  was 
thrown  from  the  train,  in  that  case  he  would  not  be  guilty  of 
contributory  negligence,  and  could  recover  from  the  company. 

It  is  essential  to  determine  which  side  has  the  burden  of 
proof  as  to  contributory  negligence.  If  the  evidence  intro- 
duced by  him  raises  the  presumption  that  he  was  guilty  of 
want  of  care  and  prudence,  then  the  burden  of  proof  is  thrown 


RAILROADS AS  CARRIERS  OF  PASSENGERS.        1977 

upon  him.  If  the  evidence  introduced  by  him  does  not  raise 
such  presumption,  then  the  burden  of  proof  is  on  the  defendant. 
But,  however  it  may  be,  if  the  evidence  discloses  that  he 
was  guilty  of  such  want  of  care  and  prudence,  that  precludes 
his  right  of  recovery.  If  you  find  negligence  on  the  part  of  the 
servants  and  agents  of  the  company,  and  that  he  was  injured 
thereby,  and  that  he  was  not  guilty  of  such  want  of  care  and 
prudence  on  his  part,  it  entitles  him  to  recover.1 

i  From  C,  H.  V.  &  T.  Ry.  Co.  v.  Newell,  supreme  court,  Xo.  1313  (12- 
478).  Price,  J.  If  a  passenger  by  the  negligence  of  the  company 
is  carried  beyond  the  station,  he  can  recover  for  the  inconvenience, 
loss  of  time,  etc.,  but  if  he  gets  off  while  the  train  is  moving, 
he  does  it  at  his  own  risk.  Jeffersonville  R.  R.  Co.  v.  Hendricks. 
26  Ind.  228,  26  Ind.  459,  23  Pa.  St.  147,  36  111.  467. 

Sec.  2188.    Right  of  passenger  to  remain  in  waiting  room  a 
reasonable  time. 

The  jury  is  instructed  that  a  railway  company  is  not  bound 
to  furnish  a  lodging  place  for  persons  to  lounge  around  or  wait 
in  for  an  unreasonable  length  of  time  before  the  arrival  of  a 
train  which  such  person  intends  to  take.  If  the  evidence  shows 
that  the  plaintiff  could,  by  the  exercise  of  reasonable  means  at 
her  command,  have  prevented  any  damages  to  herself,  and  it 
appears  that  she  carelessly  failed  to  make  a  reasonable  effort 
to  avail  herself  of  such  means,  and  that  this  contributed  in  any 
manner  as  a  proximate  cause  to  her  injuries,  she  can  not  recover. 

A  railroad  company  is  only  bound  to  open  its  depol  and  keep 
it  warm  for  such  time  as  is  reasonably  necessary  to  seem-.'  a 
traveler  the  right  to  be  carried  on  its  train,  ft",  therefore,  the 
evidence  shows  that  a  person  goes  to  a  depot  and  remains  there 
for  a  longer  time  than  is  reasonably  necessary  to  give  such 
person  the  full  enjoyment  of  the  right  to  be  carried  upon  1  Ik* 
train,  then  the  railroad  company  can  qoI  be  held  liable,  even  if 
they  are  made  sick  by  remaining  there.1 

iBrackett  v.  Southern  Ry.,  88  So.  Car.  447,  70  S.  ]•].  1026,  Am.  .\nn. 
Cas.    1912,   C.    1212,  and  note. 


1978  INSTRUCTIONS  TO  JURY. 

Sec  2189.  Negligence  of  sleeping-car  employee — Railroad 
company  presumed  liable  for  injury — urden 
of  proof. 
"The  burden  of  proof  is  on  the  plaintiff  to  show  that  he  was 
injured  by  the  defendant's  negligence,  either  in  not  providing 
safe  and  suitable  cars,  or  in  not  properly  inspecting  and  taking 
care  of  them.  A  mere  statement  that  a  person  was  injured 
while  riding  on  a  railway,  without  any  statement  of  the  char- 
acter, manner,  or  circumstances  of  the  injury,  does  not  raise 
a  presumption  of  negligence  on  the  part  of  the  railway  com- 
pany. But  if  the  character,  manner,  or  circumstances  of  the 
injury  are  also  stated,  such  statement  may  raise,  on  the  one 
hand,  a  presumption  of  such  negligence,  or,  on  the  other,  a 
presumption  that  there  was  no  such  negligence.  If  the  plain- 
tiff was  in  fact  injured  while  sitting  in  his  proper  place  by  the 
falling  of  the  upper  berth  upon  his  head,  while  said  berth  ought 
to  have  remained  in  place  above,  such  fact  raises  a  presumption 
in  this  case  of  negligence,  for  which  the  defendant  is  liable.  If 
you  find  that  there  was  no  defect  in  the  road,  or  in  the  car,  or 
the  mechanism  used,  yet  if.  upon  the  evidence  in  this  case, 
you  find  it  reasonable  to  presume  that  the  accident  happened 
by  reason  of  the  upper  berth  not  having  been  properly  fastened 
in  its  place,  or  by  reason  of  the  persons  having  charge  of  the 
car  having  failed  to  observe  that  it  had  become  loosened,  if  such 
insecure  condition  would  have  been  observed  by  proper  diligence, 
you  have  a  right  so  to  presume,  and  you  would  then  find  the 
defendant  guilty  of  negligence.  If.  on  the  other  hand,  in  such 
case  you  find  it  equally  reasonable  to  presume  that  the  fasten- 
ing of  the  berth  was  loosened  by  some  other  person,  not  those 
in  the  employment  of  the  defendant,  and  such  insecure  condi- 
tion would  not  be  observed  by  proper  diligence  on  the  part  of 
the  persons  having  charge  of  the  car,  you  have  the  right  so  to 
presume,  and  in  that  case  would  find  that  the  plaintiff  had  failed 
to  make  out  a  case  of  negligence  against  the  defendant.  The 
plaintiff  is  entitled  to  damages  for  injury  traceable  to  the  de- 
fendant's fault,  but  not  for  injury  caused  by  his  own  act."1 
iFrora  Railroad  Co.  v.  Walrath,  38  O.  S.  461. 


RAILROADS — AS  CARRIERS  OF  PASSENGERS.        1979 

Sec.  2190.     Injury  to  conductor  riding  on  train  other  than  his 
own  with  consent  of  conductor  in  charge. 

In  Railway  Company  against  Robert  Bycraft  (Supreme  Court, 
unreported),  the  plaintiff  was  a  conductor  who  boarded  a  train 
other  than  the  one  of  which  he  was  conductor,  and,  while  riding 
thereon,  was  injured  by  a  collision.  The  question  at  issue  was 
whether  he  was  a  passenger  on  such  train  at  the  time  of  his 
injury,  and  whether  he  could  recover  for  negligence  of  the  con- 
ductor of  such  train. 

J.  R.  Johnston,  J.,  charged  the  jury  as  matter  of  law :  That 
if  you  find  that  plaintiff  was  injured  by  reason  of  the  negli- 
gence and  want  of  care  on  the  part  of  the  conductor  of  train 
37,  and  you  also  find  that  the  plaintiff,  at  the  time  he  received 
his  injury,  was  upon  that  train  with  the  consent,  permission, 
and  knowledge  of  the  defendant,  and  with  the  consent,  per- 
mission, and  knowledge  of  the  conductor  of  this  train  37,  but 
that  at  that  time  he  was  in  the  discharge  of  no  duty  incident 
to  his  employment,  and  was  not  engaged  in  discharging  any 
of  his  duties  as  a  conductor  upon  that  road,  or  any  duty  upon 
that  train,  and  was  merely  riding  from  A.  to  his  home  at  B., 
with  this  consent,  knowledge,  and  permission  on  the  part  of 
the  defendant  and  of  the  conductor,  that  the  negligence  of 
the  conductor  in  charge  of  train  37  would  be  the  negligence 
of  the  defendant,  and  would  not  be  the  negligence  of  a  co- 
employee,  or  fellow-servant,  so  as  to  defeat  a  recovery  in  this 
action,  provided  you  find  the  plaintiff  otherwise  entitled  to 
recover.  If  you  have  found  the  plaintiff  to  have  been  thus 
upon  this  train,  then  it  became  and  was  the  duty  of  the  de- 
fendant to  exercise  towards  him  ordinary  care  in  the  running 
and  operating  of  that  train,  and  this  would  be  the  degree  of 
care  and  the  degree  only  which  was  incumbenl  upon  the  de- 
fendant by  reason  of  the  relation  which  existed  from  the  sitna 
tion  of  the  parties,  and  the  relation  they  sustained  toward  each 
other  at  that  time.  If  the  defendant  failed  and  neglected  to 
exercise  that  degree  of  care  towards  the  plaintiff,  and  for  his 
safety,  for  such  failure  the  defendant   would  be  liable,  provided 


1980  INSTRUCTIONS  TO  JURY. 

the  plaintiff  was  in  the  exercise  of  proper  care  on  his  own  part, 
and  if  this  conductor  of  train  37  failed  and  neglected  to  exer- 
cise towards  the  plaintiff  that  degree  of  care,  and  by  reason 
of  this  failure  the  plaintiff  was  injured,  the  defendant  would 
be  liable  therefor. 

"If  you  have  found  that  the  defendant  was  negligent  in  run- 
ning and  operating  train  37,  and  find  that  it  did  not  exercise 
towards  the  plaintiff  ordinary  care  for  his  safety,  and  that,  by 
reason  of  such  failure,  and  as  a  direct  and  proximate  result 
thereof,  the  plaintiff  sustained  his  injuries,  and  have  also  found 
that  at  the  time  he  received  his  injury  he  was  upon  this  train, 
with  the  knowledge,  permission,  and  consent  of  the  defendant 
and  said  conductor,  but  was  discharging  none  of  the  duties 
incident  to  his  employment  at  that  time,  and  discharging  no 
duty  required  of  him  by  the  defendant  on  that  train  or  other- 
wise, and  was  in  the  exercise  of  ordinary  care  himself,  then  the 
plaintiff  would  be  entitled  to  recover,  even  though  you  may  find 
at  that  time  the  relation  of  master  and  employee  existed  between 
the  defendant  and  the  plaintiff."1 

i  Johnston,  J.,  in  Byeraft  r.  Ry.  Co.  Judgment  affirmed  by  supremo  court. 
This  case  is  distinguished  from  Manville  v.  V.  &  T.  R.  R.  Co.,  11  O.  S. 
■117,  in  that  in  the  Manville  case  the  conductor  was  in  the  dis- 
charge of  a  duty,  being  on  the  train  going  to  his  place  of  work. 
Judge  Johnston's  charge  was  approved  by  both  circuit  and  supreme 
court.  See  as  in  point,  Packet  Co.  v.  McCue,  17  Wall.  508,  where 
it  was  left  to  jury  to  say  whether  the  employment  had  ceased. 
The  Manville  case  specially  holds  that  the  plaintiff  must  be  in  the  employ 
at  the  time  of  the  injury. 

Sec.  2191.  Liability  for  injury  to  passenger  while  assisting 
in  caring  for  sick  passenger — Whether  plain- 
tiff was  directed  or  permitted  to  assist  in 
caring  for  passenger — Duty  of  company  to- 
wards sick  passenger. 

1.  Party  assisting  exposed  to  unknown  danger. 

2.  Danger  in  passing  from  one  car  to  another. 

3.  Ordinary  care  under  circumstances  of  peculiar  peril. 


RAILROADS — AS  CARRIERS  OP  PASSENGERS.  1981 

4.  Lack  of  knowledge  of  relative  positions  of  platform   of 

cars. 

5.  Injury  must  result  from  direct  act  of  negligence  of  rail- 

way officials. 

6.  //  injury  resulted  from  mere  accident. 

7.  Notice  of  dangers  of  passing  from  one  car  to  another  by 

railway  officials. 

8.  Passenger  voluntarily  assisting  sick  passenger. 

9.  Liability  of  company  for  directions  of  conductor  as  to 

care  of  sick  passenger. 
10.  Duty  of  railway  to  sick  passenger. 

1.  Party  assisting  exposed  to  unknown  da/nger.  If  the  jury 
find  from  the  evidence  that  the  plaintiff,  pursuant  to  the  direc- 
tion or  request  of  the  conductor  of  defendant's  train,  attempted 
to  assist  in  the  carrying  of  S.  from  the  passenger  coach  to  the 
caboose,  and  that,  in  so  doing,  he  used  reasonable  care,  and  was 
injured  by  reason  of  exposure  to  a  danger  of  which  he  was  not 
aware,  and  of  which  the  servants  of  defendant,  it'  exercising 
only  reasonable  care,  would  have  known  of  and  either  protected 
him  from  or  gave  him  timely  and  adequate  warning  of;  then 
in  that  case,  defendant  is  liable  for  the  injury  resulting  from 
exposure  to  such  danger. 

2.  Danger  in  passing  from  one  car  to  another.  If  you  find 
that  plaintiff  was  exposed  to  a  danger  in  attempting  to  pass 
from  the  coach  to  the  caboose,  of  which  he  did  not  know,  and 
the  servants  of  the  defendant  did  know,  or  should  have  known. 
and  it  was  such  a  danger  as  passengers,  ordinarily,  would  not 
anticipate,  then,  and  in  that  case,  it  became  the  duty  of  the 
defendant,  by  its  servants,  to  give  plaintiff  limply  and  adequate 
warning  of  such  danger;  and  failure  so  to  do,  if  reasonably 
avoidable,  was  failure  to  use  ordinary  care,  and  for  which  de 
fendant  is  liable.1 

3.  Ordinary  care  undo-  circumstanct  s  of  /»  culiar  pi  ril.     What 
T  mean  by  ordinary  care  and  prudence,  as  the  words  are  used 


i  Sec  Wood  on  Railroads,  roc.  301;  (Joe  r.  I/Let.  R.  R.,  L.  R.  8  Q.  B.  Ifll. 


1982  INSTRUCTIONS  TO  JURY. 

in  this  charge,  is  that  degree  of  care  and  caution  which  persons 
of  ordinary  care  and  prudence  are  accustomed  to  use  and  em- 
ploy under  the  same  or  similar  circumstances. 

The  amount  of  care  required  will  depend  on  the  circum- 
stances of  each  particular  thing  to  be  done,  and  will  vary  as 
the  circumstances  of  each  particular  transaction  may  differ; 
it  is  to  be  such  care  as  prudent  persons  are  ordinarily  accus- 
tomed to  exercise  under  the  peculiar  circumstances  of  each  case ; 
if  called  into  exercise  under  circumstances  of  peculiar  peril,  a 
greater  amount  of  care  is  required  than  where  the  circumstances 
are  less  perilous,  because  prudent  and  careful  persons,  having 
in  view  the  object  to  be  attained,  and  the  just  rights  of  others, 
are,  in  such  cases,  accustomed  to  exercise  more  care  than  in 
cases  less  perilous;  the  amount'  of  care  is  increased,  but  the 
standard  is  still  the  same;  it  is  still  nothing  more  than  ordi- 
nary care  under  the  circumstances  of  that  particular  case ;  the 
circumstances,  then,  are  to  be  regarded  in  each  case  in  deter- 
mining whether  ordinary  care  has  been  exercised  or  not.2 

4.  Lack  of  knowledge  of  relative  positions  of  platform  of  cars. 
Tn  determining  whether  plaintiff  exercised  or  failed  to  exer- 
cise ordinary  care  in  attempting  to  pass  from  the  coach  to  the 
caboose,  ycu  will  consider  his  knowledge  or  lack  of  knowledge 
of  the  relative  positions  and  elevations  of  the  platforms  from 
and  to  which  he  so  attempted  to  pass. 

5.  Injury  must  result  from  direct  art  of  negligence  of  railway 
officials.  To  entitle  the  plaintiff  to  recover  for  a  failure  or  neg- 
lect of  defendant  to  exercise  such  reasonable  or  ordinary  care 
as  indicated,  it  must  appear,  from  the  evidence  in  the  case,  that 
the  injury  was  caused  and  occasioned  by  and  as  a  direct  result 
from  such  negligence  or  want  of  attention  on  the  part  of  de- 
fendant, and  was  not  simply  the  result  of  an  accident ;  and  if 
the  jury  believe,  from  the  evidence,  that  the  injury  resulted 
from  an  accident  which  could  not  have  been  seen  and  guarded 
against  by  the  use  and  exercise  of  ordinary  care  and  prudence 

2  As  to   degree  of  eare,  see  Mclntyre  v.  N.  Y.   Central  R.   R.   Co.,  34   N. 
Y.  287. 


RAILROADS AS  CARRIERS  OF   PASSENGERS.  1983 

on  the  part  of  defendant,  then  the  plaintiff  can  not  recover  in 
this  action. 

6.  //  injury  resulted  from  mere  accident.  But  if  the  injury 
was  the  combined  result  of  an  accident  and  the  defendant's  neg- 
ligence, or  want  of  ordinary  care,  as  aforesaid,  and  the  accident 
would  not  have  occurred  but  for  such  negligence  or  want  of  care 
by  the  defendant,  and  the  danger  could  not  have  been  foreseen 
or  avoided  by  the  exercise  of  ordinary  care  and  prudence  on 
the  part  of  the  plaintiff,  the  defendant,  if  guilty  of  such  negli- 
gence or  want  of  ordinary  care,  as  aforesaid,  would  be  liable 
for  the  injury  to  the  plaintiff  directly  caused  or  occasioned 
thereby,  if  such  did  occur. 

7.  Notice  of  dangers  of  passing  from  one  car  l<>  another  by 
railway  officials.  If  the  railroad  company,  through  its  con- 
ductor or  brakeman,  gave  timely  notice  or  warning  to  the  plain- 
tiff of  the  danger  of  stepping  from  one  platform  to  the  other. 
and  the  plaintiff  misunderstood  the  notice  or  warning,  through 
no  fault  of  the  defendant,  or  failed  to  hear  the  notice  or  warn- 
ing, and  made  the  misstep  and  fell  and  was  injured,  there  can 
be  no  recovery  in  this  case  against  the  defendant. 

If  the  jury  find,  in  tins  case,  that  S.  heard  the  notice  and 
warning  from  the  conductor  or  brakeman  to  look  out  in  step 
ping  across  from  the  coach  to  the  caboose,  and  thereafter  S.  had 
time  to  make  the  step,  as  he  understood  the  notice  or  warning, 
but,  through  misunderstanding  of  the  notice,  made  8  misstep 
and  fell  and  was  injured,  then  there  can  be  no  recovery  in  this 
action,  and  your  verdict  should  be  for  the  defendant. 

8.  Passenger  voluntarily  assisting  sick  passengi  r.  If  the  jury 
find  in  this  cause  that  the  plaintiff,  whilst  upon  said  train, 
voluntarily  and  without  the  direction,  knowledge,  or  request  of 
the  conductor  of  said  train,  left  said  passenger  coach  to  aid 
and  assist  in  carrying  a  sick  or  disabled  passenger  from  said 
passenger  coach  across  into  said  caboose,  and  whilst  so  doing, 
in  stepping  from  the  platform  of  the  passenger  coach  to  said 
caboose,  he  slipped  or  stepped  short  and  Pell,  and  received  the 
injury  complained  of,  in  consequence  of   the  distance   between 


1984  INSTRUCTIONS  TO   JURY. 

said  caboose  and  said  passenger  coach  being  more  than  he  ex- 
pected, or  of  the  unequal  height  of  the  platforms,  or  owing  to 
his  view  being  hidden  by  the  body  of  the  man  he  was  carrying, 
then  there  can  be  no  recovery  in  this  action,  and  your  verdict 
should  be  for  the  defendant. 

9.  Liability  of  company  for  directions  of  conductor  as  to  care 
of  sick  passenger.  If  the  jury  find  from  the  evidence  in  this 
case  that  a  passenger  in  one  of  said  passenger  coaches  was  taken 
sick  or  ill,  or  became  disabled,  through  no  fault  or  negligence 
or  want  of  proper  care  on  the  part  of  the  railway  company,  and, 
in  order  to  find  a  place  where  said  sick  or  disabled  passenger 
could  lie  down,  that  he  might  be  specially  and  properly  attended 
to,  the  conductor  of  said  train,  upon  inquiry  of  him  if  there 
was  such  a  place,  suggested  or  said  that  there  was  a  caboose  at 
the  rear  of  said  train,  having  seats  lengthwise  of  the  sides  thereof, 
to  which  he  might  be  taken  if  desired,  and  thereupon  said 
plaintiff  and  others,  friends  of  said  sick  or  disabled  passenger, 
proceeded  to  carry  him  to  said  caboose,  and  in  so  doing  said 
plaintiff  and  others,  before  stepping  from  said  passenger  coach 
to  said  caboose,  were  warned  to  be  careful  in  stepping  across 
to  the  caboose  platform,  and  thereafter  the  plaintiff,  in  stepping 
across,  stepped  short  or  slipped  and  fell  between  the  platforms 
of  the  caboose  and  the  passenger  coach  and  was  injured,  then 
the  plaintiff  can  not  recover  in  this  action,  and  your  verdict 
should  be  for  the  defendant. 

10.  Duty  of  railway  to  sick  passt  nger.  The  railroad  company, 
having  provided  comfortable,  safe,  and  fit  passenger  coaches 
for  the  plaintiff,  with  all  the  usual,  proper,  and  ordinary  attach- 
ments and  conveniences  for  public  travel,  was  not  obligated  or 
bound  to  provide,  in  addition  thereto,  a  car  specially  designed 
for  the  purpose  of  carrying  sick  or  disabled  passengers  thereto 
or  therein;  and  if  you  find  that  the  plaintiff  voluntarily  aided 
and  assisted  in  the  carriage  of  a  sick  or  disabled  fellow-passenger 
from  one  of  said  passenger  coaches  to  said  caboose,  even  though 
with  the  permission  of  the  conductor  of  said  train,  he  thereupon 
took  upon  himself  and  assumed  all  the  usual  and  ordinary  risks, 


RAILROADS — AS  CARRIERS  OP  PASSENGERS.  1985 

dangers,  and  perils  of  such  service  arising  from  the  differences 
between  the  height  of  the  platforms  of  said  coach  and  said 
caboose,  and  the  space  between  the  same ;  and  if,  in  the  doing 
and  performance  of  said  service  on  his  part,  he  was  injured, 
through  no  willful  act  or  misconduct  on  the  part  of  said  de- 
fendant or  its  employees,  then  there  can  be  no  recovery  in  this 
action  by  the  plaintiff. 

If  the  jury  find  from  the  evidence  in  this  case  that  the  con- 
ductor of  said  passenger  train  permitted  or  consented  thai  said 
sick  man  might  be  removed  from  said  passenger  coach  to  said 
caboose,  he  did  not  thereby  direct  such  removal,  nor  direct  nor 
invite  the  plaintiff  to  help  or  assist  in  the  removal  of  said  sick 
man  from  said  passenger  coach  to  said  caboose ;  and  if  the 
plaintiff  volunteered  to,  or  was  requested  by  said  sick  man  or 
his  friends,  to  help  carry  said  sick  man  from  said  passenger 
coach  to  said  caboose,  he  thereby  assumed  all  the  usual  and 
ordinary  risks  and  perils  attendant  upon  such  service,  and  the 
defendant  could  not  be  held  liable  for  any  injury  received  by 
plaintiff,  which  was  one  of  the  usual  and  ordinary  risks  and 
perils  of  such  service. 

If  the  jury  find  from  the  evidence  in  this  case  that  the  injury 
to  S.  was  accidental  and  not  from  any  want  of  proper  care  and 
precaution,  under  the  circumstances,  on  the  part  of  himself 
or  the  railroad  company,  then  there  can  be  no  recovery  in  this 
action,  and  your  verdict  should  be  for  the  defendant.3 

a  Snook,  J.,  in  Railway  Company  v.  Salzman,  52  O.  S.  558.  "A  rail- 
way company  is  under  obligation  to  give  such  care  to  a  passenger 
who  becomes  sick  on  its  train  as  is  fairly  practicable  with  the 
facilities  at  hand,  without  thereby  unduly  delaying  its  trains,  or 
unreasonably  interfering  with  the  safety  and  comfort  of  its  other 
passengers."  As  to  degree  of  care  in.  see  Mclntyre  ».  N.  V.  Central 
R.  R.  Co.,  34  N.  Y.  287.  As  to  dutj  to  care  for  Bick  passengers, 
see  A.  T.  &  S.  R.  R.  Co.  v.  Weber,  33  Kan.  543;  Connolly  v.  Crescent 
City  R.  R.  Co.,  41  La.  Ann.  57. 


CHAPTER   CXXYIII. 
RAILROAD    CROSSINGS— INJURIES   AT. 


BEC.  SEC. 

2192.  Relative  rights  and  duties  of       2201. 

company    and    public    to 
use  crossing. 
2192a.  Same  continued — Both  must 
use  faculties  to  discover 
danger. 

2193.  Duty    of     (deceased)     to    use 

senses     on     approaching       2202. 
crossing — Another    form. 

2194.  The    giving    of    signals    when 

approaching   crossings. 

2195.  Signals  for  the  protection  of 

persons    about    to    cross       2202. 
track. 

2196.  Omission     to     ring     bell     and 

sound  whistle.  2204. 

2197.  Relative  duties  of  plaintiff  and 

defendant — Plaintiff  may       2205. 
drive      on      when      train 
is  standing  still. 

2198.  Failure    to    look    and    listen, 

negligence — Duty    of    de-       2206. 
fendant  to  give  warning 
—View      of      plaintiff—      2207. 
Must  use  senses,  slacken 
speed,  or  stop.  2208. 

2199.  Duty    to    provide    safeguards 

if  structure  render  cross- 
ing dangerous — Question       2209. 
for  the  jury.    Negligence 
of  pedestrian. 

2200.  Duty  of  driver  of  vehicle  on       2210. 

approaching  crossing 
when  view  unobstructed, 
and  where  obstructed —  2211. 
Duty  when  flagman  gives 
signals  —  Must  be  free 
from  negligence. 
1986 


Injury  to  pedestrian  crossing 
track — Duty  when  there 
is  temporary  obstruction 
— Standing  on  track  and 
failing  to  look  for  ap- 
proaching train  prima 
facie  negligence. 

Train  has  right  of  way — Duty 
of  one  about  to  drive 
across  crossing  to  stop 
when  train  in  close  prox- 
imity. 

Duty  of  driver  of  vehicle  to 
look  just  before  crossing 
track. 

Duty  of  engineer  in  approach- 
ing crossings. 

Injury  resulting  from  con- 
current miscalculation  of 
engineer  and  driver  of 
vehicle — No  recovery. 

Duty  of  gateman  in  lowering 
gates. 

Duty  of  driver  of  automobile 
at  crossing. 

Driver  of  an  automoblie  may 
rely  on  gateman  giving 
notice. 

Driver  of  automobile  placed 
in  sudden  peril  at  cross- 
ing. 

Imputing  negligence  of  driver 
to  occupant  of  automo- 
bile. 

Injury  caused  by  backing 
train  onto  vehicle  at 
crossing. 


RAILROAD  CROSSINGS INJURIES  AT.  1987 

SEC.  SEC. 

2212.  Injury  to  child  climbing  over       2215.  Presumption    that   every    per- 

train  stopping  on  cross-  boh  exercises  can-  for  his 
ing  —  Negligence  under  own  .safety  when  in  clan- 
such  circumstances.  ger — Burilen  of  proof  on 

2213.  Same     continued  —  Whether  defendant    to    prove    de- 

child  climbing  over  train  cedent   did    not    look    and 

guilty     of     contributory  listen. 

negligence.  2216.  Defendant  liable  though   stat- 

2214.  Shunting   cars,   while   making  utory      signals      given — 

flying       switch,       across  When  other  acts  of  neg- 

street  crossing.  ligence  charged. 

Sec.  2192.     Relative  rights  and  duties  of  company  and  public 
to  use  crossing. 

The  right  of  the  railroad  company  to  enjoy  the  use  of  its 
railroad  at  the  crossing  of  the  public  highway,  and  the  right 
of  the  traveling  public  to  use  the  highway,  are  co-ordinate  and 
equal ;  reasonable  care  and  prudence  must  be  exercised  by  each 
in  the  use  of  the  same;  each  must  so  use  his  own  right  to  cross 
that  he  shall  not  unreasonably  interfere  with  the  rights  of  others 
to  pass  over,  having  in  view  the  nature  and  necessities  of  the 
method  of  locomotion,  and  power  of  control  over  the  Locomotion 
peculiar  to  each,  so  that,  while  the  operators  of  the  railroad  are 
to  use  care,  considering  the  nature  of  their  machinery,  the  speed 
with  which  it  is  necessary  to  run  a  train,  the  effect  of  a  collision 
by  the  train  with  an  object  on  the  crossing,  and  all  other  ele- 
ments of  danger  entering  into  it,  if  there  are  any.  that,  under 
the  circumstances,  a  man  of  ordinary  prudence  would  exercise; 
so  is  he  who  travels  upon  the  highway  to  use  ordinary  care. 

Considering  the  means  by  which  he  is  traveling,  it  will  be 
observed  that  the  man  on  foot  or  traveling  with  a  horse  and 
buggy,  can  much  easier  control  his  movements  than  can  the 
servants  of  the  railway  control  the  movements  of  the  train,  so 
the  rule  is  that  each  one,  with  reference  to  their  particular  mode 
of  traveling,  that  they  should  exercise  the  care  thai  men  of 
ordinary  care  and  prudence  would  use  under  the  same  or  simihir 
circumstances.  The  defendant  had  the  righl  1<»  rim  the  train 
at  the  time  and  place  of  this  collision  at  any  speed  consistent 


1988  INSTRUCTIONS  TO  JURY. 

with  the  safety  which  was  necessary  in  the  conduct  of  its  busi- 
ness in  the  usual  and  ordinary  manner,  taking  into  considera- 
tion, however,  all  the  circumstances  surrounding  that  crossing 
affecting  the  traveling  public  and  having  a  due  regard  for  the 
safety  of  the  public  using  the  crossing.1 

i  Gillmer,  J.,  in  Flemming  v.  Penn.  Co.,  Trumbull  Co.  Com.  Pleas. 

If  one  approaching   a  crossing   fails  to   look  out  for   approaching  trains, 

he  is  prima  facie  guilty   of  negligence,  24  0.   S.   670,  677,  28  O. 

S.  340. 

Sec.  2192a.     Same,  continued — Both  must  use  faculties  to  dis- 
cover danger. 

Plaintiff  and  defendant  in  this  case  had  co-ordinate  and  equal 
right  to  the  use  of  crossing  of  the  highway  and  the  railroad, 
and  they  were  each  held  to  the  exercise  of  reasonable  care  and 
prudence  in  the  use  of  the  crossing,  so  as  not  to  interfere  un- 
necessarily with  the  other.  Such  reasonable  prudence  would 
require  both  plaintiff  and  defendant's  employees,  if  in  the  full 
enjoyment  of  their  faculties  of  seeing  and  hearing,  before  at- 
tempting to  pass  over  a  known  railroad  crossing,  to  make  use 
of  such  faculties  for  the  purpose  of  discovering  and  avoiding 
danger,  and  the  failure  to  do  so  without  reasonable  excuse  is 
negligence.1 

i  J.  "FT.  Day.  J.,  in  T.  T..  &  W.  P.  P.  Co.  v.  Stadler,  supreme  court,  unre- 
ported case.  See  important  case  and  note,  Paul  v.  Railway,  Ann. 
Cas.  1912,  B.  1132,  231  Pa.  St.  338. 

Sec.  2193.  Duty  (of  deceased)  to  use  senses  on  approaching 
crossing — Another  form. 
''The  deceased  was  bound  to  use  the  same  care  in  protecting 
himself  that  the  defendant  company  was  bound  to  use  in  seeing 
that  no  person  came  to  injury  by  the  management  of  its  cars 
and  engines.  That  is,  he  was  bound  to  use  such  care  and  pru- 
dence as  a  reasonable,  prudent,  man  would  use  in  protecting 
himself  against  any  injury.  It  was  his  duty  to  use  his  senses, 
in  approaching  the  railway  track,  to  discover  whether  or  not 
there   was    an   approaching   train   or   locomotive   which    might 


RAILROAD  CROSSINGS INJURIES  AT.  1989 

injure  him,  to  make  such  reasonable  use  of  his  eyes  and  other 
senses  as  a  reasonable  and  prudent  man  would  make,  and  if, 
by  the  use  of  them,  he  could  have  avoided  the  danger,  thru 
he  can  not  recover  from  the  company.  But  if  he  exercised 
such  care  as  a  reasonable  and  prudent  man  would  exercise, 
and  if  the  defendant  was  guilty  of  neglect  in  the  running  of 
the  engine,  and  the  deceased  was  killed  by  reason  of  that,  then 
the  company  is  responsible."1 

i  From  Railway  Company  v.  Schneider,  45  0.  S.  07S.  'it  was  the  duty 
of  the  deceased  in  approaching  the  railroad  crossing,  to  look  for  the 
locomotive  before  attempting-  to  cross;  and  if  his  failure  contributed 
to  the  accident,  the  plaintiff  can  not  recover,  even  though  the  de- 
fendant's negligence  contributed    to   the   injury." 

"Even  though  the  fireman  and  engineer  were  guilty  of  neglect  contributing 
to  the  injury,  yet  that  did  not  absolve  the  deceased  from  exercis- 
ing the  precaution  of  looking  and  listening  for  the  approach  of 
trains  at  such  point  on  the  street  as  would  enable  him  to  discover 
the  approaching  train  or  locomotive:  or  from  approaching  the  cross- 
ing at  such  gait  as  would  enable  him  to  control  his  horses 
promptly."     From  Railroad  Co.  v.  Schneider,  45  0.  S.  678. 

Sec.  2194.     The  giving-  of  signals  when  approaching  crossing. 

The  statute  requires  that  a  railroad  company  shall  attach 
to  each  locomotive  passing  upon  its  road,  a  bell  and  whistle, 
and  wdien  an  engine  is  in  motion  and  is  approaching  a  turnpike, 
highway  or  town  road  crossing  or  private  crossing  where  the 
view  of  such  crossing  is  obstructed  by  embankment,  trees,  curve 
or  other  obstruction  to  view,  upon  the  same  line  therewith,  and 
in  like  manner  where  the  road  crosses  any  other  traveled  place. 
by  bridge  or  otherwise,  the  engineer  or  person  in  charge  thereof, 
shall  sound  such  whistle  at  a  distance  of  at  least  eighty  and  not 
further  than  one  hundred  rods  from  such  crossing,  and  ring 
such  bell  continuously  until  the  engine  passes  the  crossing.1 

i  Code,  sec.  8853. 

Sec.  2195.     Signals  for  the  protection  of  persons  about  to  cross 
the  track. 
The  statute  is  designed  for  the  benefit  and  protection  only  of 
persons  who  arc  about  to  pass  over  a  grade  or  other  crossing 


1990  INSTRUCTIONS  TO  JURY. 

as  therein  provided,  for  it  provides  that  the  whistle  is  to  be 
sounded  before  reaching  the  crossing,  and  the  bell  is  to  be  con- 
tinuously rung  until  the  crossing  is  passed.  The  signals  are  not 
required  at  any  other  time.1 

i  Railway  v.   Workman,   66  0.   S.  509,   542;    Railway   v.  Depew,   40   O.   S. 
121,  127-129. 

Sec.  2196.     Omission  to  ring  bell  and  sound  whistle. 

The  law  requires  that  every  railroad  company  shall  have 
attached  to  each  locomotive  engine  passing  upon  its  road  a  bell 
of  the  ordinary  size  in  use  on  such  engines  and  a  steam  whistle  ; 
and  the  engineer  or  person  in  charge  of  the  engine  in  motion, 
and  approaching  a  public  highway  or  town-road  crossing,  upon 
the  same  level  therewith,  shall  sound  such  whistle  at  a  distance 
of  at  least  eighty,  and  not  further  than  one  hundred,  rods  from 
the  place  of  such  crossing,  and  ring  such  bell  continuously  until 
the  engine  passes  such  road  crossing;  and  such  company  em- 
ploying such  engineer  or  person  in  charge  of  the  engine  shall 
be  liable  in  damages  to  any  person  injured,  in  person  or  prop- 
erty, by  such  neglect  or  act  of  such  engineer  or  person. 

In  regard  to  that'  statute  the  jury  are  instructed  that  the 
omission  to  ring  the  bell  or  sound  the  whistle  at  public  cross- 
ings is  not  sufficient  grounds  to  authorize  a  recovery,  if  the 
person  injured,  notwithstanding  such  omission,  might,  by  the 
exercise  of  ordinary  care,  have  avoided  the  accident ;  but  if 
the  person  injured  by  reason  of  such  omission  to  ring  the  bell 
or  sound  the  whistle  could  not,  by  the  exercise  of  ordinary  care, 
have  avoided  the  accident,  he  would  be  entitled  to  recover  dam- 
ages under  that  statute  because  of  such  omission. 

Therefore,  if  the  jury  find  from  the  evidence  that  plaintiff's 
intestate  was  injured  by  the  negligent  omission  to  ring  the  bell 
or  sound  the  whistle  upon  defendant's  locomotive,  and  that,  by 
the  exercise  of  ordinary  care,  he  could  not  have  avoided  the 
injury,  then  plaintiff  will  be  entitled  to  recover  damages  because 
of  such  negligence  and  injury  inflicted  thereby. 


RAILROAD  CROSSINGS — INJURIES  AT.  1991 

If  the  jury  believe  from  the  evidence  that  the  engineer 
sounded  the  whistle  from  a  point  more  than  one  hundred  rods 
to  a  point  nearer  than  eighty  rods  from  the  crossing  where  the 
accident  occurred,  such  sounding  of  the  whistle  was  a  substantial 
compliance  with  the  requirements  of  the  law  in  that  behalf.1 

iDouthitt,  J.,  in  P.  C.  C.  &  St.  L.  Ry.  r.  Adams,  S.  C.  3671.  Judg- 
ments affirmed.  Harrison  county.  The  failure  to  give  signals 
must  have  been  the  proximate  cause  of  the  accident  before  re- 
covery can  be  had.     Penn.  Co.  v.  Rathgeb,  32  O.  S.  72. 

Sec.  2197.     Relative  duties  of  plaintiff  and  defendant — Plain- 
tiff may  drive  on  when  train  standing  still. 

The  same  duty  was  upon  him  in  approaching  a  known  rail- 
road crossing  as  upon  defendant,  and  he  must  use  his  faculties 
of  seeing  and  hearing  to  detect  and  avoid  danger.  He  must 
look  and  listen  to  ascertain  if  there  is  danger,  and  to  avoid  it. 
If  he  fails  to  do  this,  he  is  not  in  the  exercise  of  ordinary  care, 
but'  is  negligent.  If  plaintiff  looked  and  listened  in  this  case, 
and  saw  the  train  standing  still,  with  no  evidence  of  activity  or 
intention  to  move  back,  and  no  signal  was  discovered  or  heard 
of  an  intention  to  move  back,  he  would  be  at  liberty  to  drive 
onto  and  across  the  railroad,  and  would  not  be  subject  to  the 
charge  of  negligence.  If,  however,  he  omitted  these,  things,  and 
without  exercising  ordinary  care,  and  without  care,  drove  onto 
the  crossing  in  the  presence  of  a  moving  train,  or  a  train  that 
had  signaled  and  given  notice  of  its  purpose  to  move  across  the 
crossing,  in  such  case  the  plaintiff  may  not  recover.1 

ij.  H.  Day,  J.,  in  L.  E.  &  W.  R.  R.  Co.  v.  Stadlor.  supreme  court,  un- 
reported. 

Sec.  2198.     Failure  to  look  and  listen,   negligence — Duty  of 
defendant  to  give  warning — View  of  plaintiff. 

It  is  a  duty  of  a  person  approaching  a  known  railroad  cross- 
ing to  look  and  listen  for  an  approaching  train  and  to  make 
use  of  his  senses  to  ascertain  if  there  is  a  train  in  the  vicinity, 
and  if,  being  in  full  possession  of  his  faculties,  he  fails  to  lake 


1992  INSTRUCTIONS  TO  JURY. 

such  precautions  without  reasonable  excuse  therefor,  when  a 
prudent  man,  exercising  his  senses,  would  have  discovered  a 
train  in  close  proximity,  and  such  failure  contributes  to  pro- 
duce injury,  he  is  guilty  of  negligence,  and  there  can  be  no 
recovery.1  It  is  the  duty  also  of  the  defendant  company  by 
proper  signals,  and  in  a  manner  that  would  ordinarily  com- 
municate to  the  plaintiff  approaching  the  crossing,  that  the 
defendant's  train  was  approaching  the  crossing,  but  that  its 
notice  must  be  given  so  that  the  plaintiff  could  protect  himself 
from  injury. 

If  you  find  from  the  evidence  that  there  was  a  place  on  the 
east  side  of street  where  the  train  could  be  seen  as  it  ap- 
proached the  crossing,  and  further  find  that  the  train  could 
have  been  seen  by  the  plaintiff  from  that  space  as  he  passed, 
and  he  failed  to  look,  without  a  reasonable  excuse  therefor,  he 
was  guilty  of  negligence,  and  if  such  negligence  contributed  to 
produce  the  injury,  then  he  could  not  recover. 

It  is  because  railroad  crossings  are  dangerous  that  it  is  the 
duty  of  persons  approaching  them,  and  about  to  cross,  to  be 
careful.  Any  circumstances  or  obstruction  which  increases  the 
danger  of  crossing  increases  the  duty  of  vigilance  to  avoid  the 
injury. 

(a)  Must  use  senses,  slacken  speed  or  stop. 
It  is  the  duty  of  a  person  approaching  the  crossing  in  a  buggy 
to  assure  himself,  if  he  can  by  the  use  of  his  senses  of  sight  and 
hearing,  that  no  cars  are  in  dangerous  proximity,  or,  if  neces- 
sary in  the  exercise  of  ordinary  care  to  make  such  observations, 
he  would  be  required  to  reduce  the  rate  of  speed,  or  even  to 
stop  his  conveyance  so  as  to  ascertain  whether  or  not  he  could 
cross  the  track  in  safety;  but  in  this  case  the  law  does  not 
require  a  vain  thing,  and  if  there  were  buildings  and  obstruc- 
tions which  would  have  prevented  the  plaintiff  from  seeing  the 
approaching  train  if  he  had  turned  his  eyes  in  that  direction, 
that  he  was  not  bound  to  look  at  such  point,  and  failure  to  do 
so  would  not  be  negligence.2 

iC.  C.  C.  &  I.  Ry.  v.  Elliott,  28  0.  S.  340;  Railway  v.  Geiger,  8  O.  C. 
C.  41. 


RAILROAD   CROSSINGS INJURIES  AT.  1993 

-  Gillmer,  J.,   in   Flemming  r.   Ta.   Co.,   Trumbull  Co.   Com.  Pleas. 

W  here   buildings    and    obstructions   obstruct   view,    for   degree    of  care   in, 

see  Wood  on  Railroads,  sec.   323;   Dimmick    r.  Chicago,  etc.,  R.   R. 

Co.,  80  111.  338. 

Sec.  2199.     Duty  to  provide  safeguards  if  structures  render 
crossing  dangerous — Question  for  the  jury — 
Negligence  of  pedestrian. 

If  you  find  from  the  evidence  that  the  railroad  company,  by 

reason  of  the  speed  it  ran  its  trains  across  street,  its 

number  of  tracks,  or  having  cars  standing  on  the  tracks  near 
said  crossing,  or  the  existence  of  buildings  or  other  structures 
at  or  near  said  crossing,  rendering  the  use  of street  dan- 
gerous to  the  public,  you  are  instructed  that  the  company  was 
under  obligation  to  employ  reasonable  care  and  prudence  in 
providing  safeguards  for  the  protection  of  persons  lawfully 
passing  along  said  street  and  over  said  railroad  tracks,  and  com- 
mensurate with  the  dangers  of  the  locality  so  created  by  the 
company,  to  persons  exercising  their  rights  to  pass  over  and 
along  said  highway  in  a  reasonable  manner.  It  is  left  for  yon 
to  say  from  the  evidence,  under  all  the  circumstances,  whether 
a  flagman  ought  to  have  been  employed  by  the  company,  and 
whether  it  would  be  negligence  on  the  part  of  the  defendants 
not  to  have  done  so  at  the  time  of  the  injury;  and  if  the  de 
fendant  was  guilty  of  negligence  in  these  respects,  and  the 
decedent  was  not  in  fault,  and  sustained  said  injury  therefrom, 
the  plaintiff  would  be  entitled  to  compensation  therefor,  it'  in 
other  respects,  you  find  that  he  is  entitled  to  recover  under  the 
instructions  given  you. 

If  the  decedent  knew  that  a  flagman  was  employed  by  the 
company  at  the  crossing,  and  had  good  reason  to  believe,  and 
in  good  faith  believed,  that  one  was  so  employed  al  the  time 
of  the  injury,  and  you  further  find  thai  it  was  the  duty  of  the 
company  so  to  employ  a  flagman,  the  decedenl  might  presume, 
in  the  absence  of  knowledge  to  the  contrary,  thai  he  was  prop- 
erly discharging  his  duties,  and  it  was  not  negligence  on  her 


1994  INSTRUCTIONS  TO  JURY. 

part  to  act  on  the  presumption  that  she  was  not  exposed  to 
danger,  which  could  arise  only  from  the  disregard  by  the  flag- 
man of  his  duty  ;*  and  if  the  flagman  was  then  absent  from  his 
place  of  duty,  or  was  not  giving  any  signal  or  warning  when 
she  attempted  to  pass  over  the  crossing,  she  might  presume  that 
no  train  was  approaching  which  would  make  it  dangerous  for 
her  to  attempt  to  pass  over  the  crossing,  in  the  absence  of  other 
knowledge  to  the  contrary.2 

i  Schneider  case,  45  O.  S.  678. 

-  Voris,  J.,  in  Gaston,  Admr.,  v.  Lake  Shore  R.  R.  Co.,  Lorain  Co.  Com. 
Pleas. 

Flagman  and  Catemen. — In  the  absence  of  statute,  the  omission  to  main- 
tain flagman  may  be  considered  as  part  of  res  gestae  with  other 
facts  as  bearing  upon  prudence  or  negligence  of  company,  78  N. 
Y.  518,  66  Mich.  150,  74  Wis.  240,  74  Wis.  514,  101  Mass.  201; 
Beach  Contrib.  Neg.,  p.  247;  Patterson  Ry.  Ace.  Law,  163.  At  an 
exceptionally  dangerous  crossing,  a  company  is  bound  to  exercise 
care  proportioned  to  the  increased  danger,  and  should  maintain 
flagman,  gates  or  gatemen.  Ry.  Co.  v.  Schneider,  45  0.  S.  678. 
A  traveler  approaching  the  crossing  may  presume  that  the  gate- 
men  will  properly  do  their  duty.  Id.  There  is  no  rule  of  law 
requiring  a  railroad  company  to  erect  gates,  or  keep  flagman  at 
crossings  outside  of  a  city  or  village.  L.  S.  &  M.  S.  Ry.  v.  Gaffney, 
2  Oh.  Dec.  212  (C.  C). 

If  a  railroad  company  voluntarily  establishes  a  gate  at  a  crossing,  there 
is  an  implied  assurance  that  the  tracks  may  be  safely  crossed  if 
the  gates  are  open.     Jaggard  on  Torts,  881. 


Sec.  2200.  Duty  of  driver  of  vehicle  approaching  crossing 
when  view  unobstructed,  and  where  ob- 
structed— Duty  when  flagman  gives  signals — 
Must  be  free  from  negligence. 

"The  common  precaution  is  to  look  both  ways  and  listen. 
Perhaps  where  the  view  of  the  track  is  unobstructed  and 
sufficiently  wide,  it  satisfies  the  rule  simply  to  look,  otherwise 
the  common  law  is  that  one  should  also  listen.  Where  the 
view  is  obstructed,  the  caution  must  consist  mainly  in  listening, 
it  may  be  a  duty  to  produce  quiet  by  stopping.  If  the  railroad 
company  employ  a  flagman,  gate  or  other  device  to  warn  people 


RAIUtOAD  CROSSINGS — INJURIES  AT.  1995 

of  approaching  danger,  a  traveler  is  not  negligent  who,  instead 
of  looking  and  listening,  follows  the  signals,  unless  he  reasonably 
knew  aside  from  the  signals  that  danger  was  actually  imminent. 
But,  on  the  other  hand,  a  traveler  who  relies  upon  the  signals 
rather  than  upon  his  own  faculties  is  negligent  if  he  disregarded 
the  signals. 

"The  matter  may  be  summarized  thus:  A  railroad  track  is 
commonly  a  place  of  danger.  He  who  undertakes  to  cross,  to 
be  free  from  negligence,  must  take  such  precaution  to  ascertain 
the  imminence  of  danger  as  an  ordinarily  prudent  man  would 
take  under  like  circumstances.  And  if  you  believe  from  the 
evidence  that  the  driver  might,  by  the  exercise  of  ordinary  care 
and  caution,  have  become  aware  of  the  danger  and  have  avoided 
it,  that  he  omitted  to  exercise  such  care  and  caution,  and  that 
his  omission  to  do  so  directly  contributed  to  the  injury,  then  he 
was  guilty  of  negligence.1 

iLeisor  v.  C.  H.  &  D.  R.  Co.     Hamilton   county.     Wright,  J.     See   R.  R. 
Co.  v.  Schneider,  45  0.  S.  678. 

Sec.  2201.  Injury  to  pedestrian  crossing  track — Duty  when 
there  is  temporary  obstruction — Standing  on 
track  and  failing  to  look  for  approaching 
train  prima  facie  negligence. 

If  a  passing  train  on  another  track,  or  escaping  steam,  or  any 
other  temporary  cause  obstructed  or  obscured  her  view  or 
hearing,  then  the  court  says  to  you  that  it  was  her  duly,  before 
attempting  to  cross,  to  wait  until  such  temporary  cause  had 
passed  away,  and  if  she  attempted  to  cross  without  thus  waiting, 
she  did  so  at  her  own  risk,  and  if  injured  while  thus  crossing, 
she  can  not  recover,  if  you  find  that,  by  waiting  until  such 
temporary  cause  had  passed  away,  she  could  have  crossed  in 
safety. 

The  necessity  or  importance  of  her  being  al  the  factory 
immediately  or  promptly  would  be  no  excuse  for  her  oot  waiting 
until  she  could  cross  in  safety,  or  justify   her  in    taking  any 


1996  INSTRUCTIONS  TO  JURY. 

risks;  neither  would  absent-mindedness,  thoughtlessness,  forget- 
fulness,  or  inattention. 

If  you  find  that  plaintiff  failed  to  look  east  for  the  train,  that 
is  not  merely  evidence  of  negligence  from  which  you  may  or 
may  not  infer  it,  but  it  is,  in  and  of  itself,  such  negligence  as 
prevents  her  from  recovering,  if,  by  thus  looking,  she  could 
have  seen  the  approaching  train  in  time  to  have  avoided  the 
injury.  And  it  was  equally  her  duty  to  listen  as  well  as  look, 
and  to  do  both  attentively  and  carefully  until  across  the  track. 
And  it  is  the  duty  of  every  person  of  mature  years  and  sound 
mind,  about  to  cross  a  railroad  track,  not  only  to  look  and  listen, 
but  to  exercise  all  their  other  senses  and  means  of  knowing  to 
ascertain  if  a  train  is  approaching,  and  if  they  fail  to  do  so 
without  a  reasonable  excuse  therefor,  and  are  thereby  injured 
while  crossing,  they  can  not  recover. 

If  an  adult  person  in  full  possession  of  her  faculties  goes 
upon  a  railroad  track  and  voluntarily  stops  or  stands  thereon, 
not  being  an  employe  of  the  railroad  company,  and  omits  to 
w;it di  for  the  approaching  trains,  she  is,  prima  facie,  guilty 
of  such  negligence  as  will  prevent  her  recovering  for  injuries 
while  so  on  the  track;  and  before  she  can  recover,  she  must 
show  that  it  was  not  reasonably  practicable  to  keep  such  look- 
out, or  that  which  would  ordinarily  induce  a  person  of  common 
prudence  and  circumspection  to  omit  such  precaution. 

If  the  plaintiff  failed  to  look  and  listen,  she  was  guilty  of 
such  negligence  as  will  prevent  her  recovering,  if,  by  proper 
and  prudent  looking  and  listening,  she  could  have  ascertained 
and  avoided  the  injury,  and  also,  if  she  looked  and  listened 
and  did  not  see  or  hear  the  train  when,  by  the  exercise  of 
ordinary  care  and  attention,  she  might  have  done  so  and  escaped 
injury,  then  in  law  she  looked  and  listened  carelessly  and 
negligently,  and  is  equally  culpable,  and  in  either  case  she  was 
guilty  of  such  negligence  as  will  prevent  her  recovering  a 
verdict,  if  you  find  that  her  negligence  or  failure  aforesaid 
contributed  to  her  injury,  in  whole  or  in  part,  unless  you  find 
that  it  was  prudent  and  proper  for  her,  under  the  circumstances, 


RAILROAD   CROSSINGS INJURIES   AT.  1997 

to  omit  looking  and  listening  before  going  on   the  track,  and 
also  while  standing  upon  it,  if  she  did.1 

i  Gillmer,  J.,  in  Huron  v.  X.  Y.  L.  E.  &  \Y.  R.  R.  Co.,  Portage  Co.  Com. 

Pleas. 
As  to  necessity  of  flagman,  see  Code,  sec.  588. 

Sec.  2202.  Train  has  right  of  way— Duty  of  one  about  to 
drive  across  crossing  to  stop  when  train  in 
close  proximity. 

The  jury  is  instructed  that  as  between  a  person  who  is  about 
to  cross  over  a  railroad  at  a  crossing,  and  a  train  of  cars 
approaching  such  crossing,  the  train  has  the  right  of  way.  This 
is  so  because  the  person  can  stop  within  a  few  feet,  while  the 
train  can  not.  It  is  therefore  the  duty  of  the  person  so  approach- 
ing the  crossing  to  stop  and  let  the  train  pass  before  attempting 
to  cross,  provided  it  is  apparent  to  an  ordinarily  prudent  person 
that  both  the  approaching  train  and  the  person  are  in  such  close 
proximity  to  the  crossing  as  to  make  it  reasonably  apparent  to 
an  ordinarily  prudent  person  that  such  train  is  so  close  at  hand 
as  to  render  the  crossing  by  the  person  dangerous  under  the 
circumstances. 

To  rush  ahead  and  attempt  to  pass  under  such  circumstances 
knowing  the  train  is  of  such  close  proximity  to  the  crossing  as  to 
render  such  act  dangerous  would  constitute  negligence.1 
i  Railroad  v.  Kistler,  6G  O.  S.  326,  336. 

Sec.  2203.  Duty  of  driver  of  vehicle  to  look  just  before  cross- 
ing track. 

To  drive  upon  a  crossing  without  first  looking  for  passing 
trains  is  negligence.  It  is  the  duty  of  one  aboul  t<>  cross  .it  ;i 
railroad  crossing  to  look  for  the  passage  of  trains  just  before 
going  upon  the  crossing,  or  so  near  thereto  as  will  enable  aim 
to  get  across  in  safety  at  the  speed  be  is  going  before  a  train 
within  the  range  of  his  view  of  the  track,  going  ;d  the  usual 
speed  of  fast  trains,  would  reach  the  crossing.  It  is  the  duty 
of  such  person  to  so  look  before  going  upon  the  track,  even 


1998  INSTRUCTIONS  TO  JURY. 

though  such  person  had  before  approaching  closely  to  the  track, 
that  is,  though  there  was  a  looking  farther  away  when  no  train 
was  seen  approaching.  Such  person  is  bound  to  take  into 
account  the  fact  that  a  train  at  the  usual  speed  will  go  quite 
a  distance,  while  a  team  on  a  walk  or  trot  will  go  a  much  shorter 
distance.  The  care  to  be  observed  by  the  traveler  in  such  case 
must  correspond  with  the  danger,  and  is  to  be  determined  by 
the  jury  under  the  facts  and  circumstances  disclosed  by  the 
evidence.1 

i  Railroad  v.  Kistler,  66  0.  S.  326,  336. 

Sec.  2204.     Duty  of  engineer  in  approaching  crossings. 

The  jury  is  instructed  that  it  is  the  duty  of  an  engineer  on 
a  train  to  keep  a  lookout  on  the  track  ahead  of  him.  He  is  not 
expected  or  required  to  see  anything  on  the  sides  of  the  right 
of  way  farther  than  his  eye  may  take  in  objects  within  the 
range  of  vision  while  looking  ahead  along  the  track,  because  his 
paramount  duty  is  to  watch  over  the  safety  of  the  persons  in  his 
charge,  which  obligation  is  most  effectually  performed  by  keeping 
a  strict  lookout  ahead  along  the  track,  so  as  to  see  any  obstruction 
at  the  earliest  moment,  and  to  be  prepared  to  avert  danger  to 
the  train.  If,  however,  while  so  looking  ahead  his  eye  takes  in 
a  person  approaching  the  track  at  a  crossing,  he  is  then  bound 
to  use  ordinary  care  to  prevent  injury,  his  first  care  however 
being  for  the  safety  of  his  passengers  and  property  on  board  for 
transportation. 

The  engineer  has  the  right  to  presume  that  a  person  so 
approaching  the  crossing  will  keep  away  from  the  track  until 
the  train  passes,  but  when  it  becomes  apparent  to  him  that  the 
person  can  not  or  will  not  keep  away  from  the  track,  then  it  is 
incumbent  on  such  engineer  to  do  all  that  he  reasonably  can  to 
prevent  injury. 

Whether  or  not  the  engineer  could  or  did  see  the  person 
approaching  the  crossing  is  for  the  jury  to  determine.  Of  course 
whatever  he  would  or  should  see  in  the  reasonable  discharge  of 


RAILROAD    CROSSINGS — INJURIES   AT.  1999 

his  duty,  he  is  chargeable  with  having  seen.  But  he  is  not- 
required  to  neglect  his  duties  on  the  train  to  look  outside  of  the 
right  of  way  for  approaching  persons,  not  within  the  range  of 
his  vision  while  looking  ahead  along  the  track.  There  can  be  no 
recovery  by  plaintiff,  unless  it  appears  from  the  evidence  that 

the  engineer  after  he  saw  ,  and  realized  his  danger,  had 

time  to  slow  down  the  train  or  to  stop  it  so  as  to  prevent  the 

injury.1 

i  Railroad  v.  Kistler,  66  0.  S.  326. 

Sec.  2205.     Injury  resulting  from  concurrent  miscalculation  of 
engineer  and  driver  of  vehicle — No  recovery. 

If  it  appears  from  the  evidence,  that  [the  person]  approaching 
the  crossing,  was  negligent  in  going  upon  the  crossing  in  front 
of  a  rapidly  approaching  train,  thinking  that  he  could  cross  in 
safety ;  and  if  it  appears  also  that  the  engineer  after  discovering 
that  such  person  [plaintiff  or  decedent]  was  negligent,  negli- 
gently failed  to  slow  down  or  slacken  the  speed,  or  to  stop  the 
train,  thinking  or  assuming  that  such  person  would  be  able  to 
cross  in  safety,  and  the  collision  occurred  by  reason  of  the 
mistake  or  miscalculation  of  both,  then  such  injury  resulted 
proximately  from  the  concurrent  acts  of  both  and  the  plaintiff 
can  not  recover.1 
i  Railroad  v.  Kistler,  66  0.  S.  326. 

Sec.  2206.     Duty  of  gateman  in  lowering  gates. 

The  jury  is  instructed  that  it  is  the  duty  of  a  gateman 
employed  at  a  railroad  crossing  to  exercise  ordinary  care  in  the 
operation  of  the  gates  to  avoid  letting  them  down  on  any  one 

in  the  street. 

It  is  the  duty  also  of  persons  about  to  cross  a  railroad  crossing 
where  gates  are  maintained  and  operated  by  gatemen,  to  use 
ordinary  care  in  watching  for  the  Lowering  of  Buch  gates, 
although  it  may  not  be  required  of  them  thai  they  be  con- 
tinuallv  on  the  watch  of  the  movements  of  the  gate. 


2000  INSTRUCTIONS  TO  JURY. 

In  the  exercise  of  ordinary  care  by  the  gateman  he  is  required 

to  keep  the  gate  under  such  reasonable  control  at  all  times  and 

to  keep  a  lookout  on  the  street.     He  must  observe  reasonable 

care  to  avoid  letting  the  gates  down  on  any  one  in  the  street, 

or  to  let  the  same  down  unannounced  or  unexpectedly  when  a 

traveler  starts  to  cross  the  tracks.1 

iSager  v.  R.  R.  Co.,  70  Kan.  504;  Feeney  v.  R.  R.  Co.,  116  X.  Y.  375, 
5  L.  R.  A.  544;  O'Keefe  v.  R.  R.  Co.,  108  Mo.  App.  177.  See 
note  Ann.  Cas.  1913,  B.  800. 

Sec.  2207.     Duty  of  driver  of  automobile  at  crossing. 

While  the  use  of  the  automobile  as  a  mode  of  travel  in  high- 
ways and  streets  may  develop  new  phases  of  questions  of 
reciprocal  rights  and  duties  in  some  respects,  still  the  general 
doctrines  of  the  law  become  applicable  to  those  operating  the 
same  in  relation  to  the  use  of  grade  crossings  over  railroads. 

The  same  obligation  and  duty  is  imposed  on  a  driver  of  an 
automobile  before  passing  over  a  railroad  crossing  at  grade  to 
stop,  look  and  listen  before  crossing  the  same.1  The  application 
of  this  rule  in  such  case  is  simpler  and  less  difficult  than  to 
drivers  of  vehicles  because  there  is  no  danger  when  the  auto- 
mobile is  in  close  proximity  to  the  railroad  track.'-  The  same  rule 
applies  where  the  vision  is  obscured  or  restricted,  it  being  the 
duty  of  the  driver  to  stop  at  a  point  in  such  close  proximity 
to  the  tracks  of  the  railroad  as  will  render  the  vigilance  of  the 
driver  effective.3  So  if  the  crossing  is  located  at  a  point  where 
the  vision  is  not  only  obstructed  but  where  there  is  such  noise 
as  to  render  it  difficult  to  hear  the  approach  of  a  train  vigilance 
commensurate  with   the  situation  is  required.' 

So  whether  the  driver  observed  ordinary  care,  whether  he 
stopped  a  sufficient  length  of  time,  or  at  a  place  where  it  would 
be  effective,  or  under  such  circumstances  and  conditions  as  to 
learn  and  know  the  conditions  and  circumstances  is  for  the 
jury.5 

i  Brommer  v.  R.  R.  Co.,  179  Fed.  577.  103  C.  C.  A.  135.  29  L.  R.  A. 
(N.S.)  924:  Horandt  v.  R.  R.  Co.,  81  N.  J.  L.  488:  Spencer  v. 
R.  R.  Co.,  123  App.  Div  789,  108  N.  Y.  S.  245,  197  N".  Y.  507. 
But  see  Walters  v.  R.   R.  Co.,    133   Pac.   357. 


RAILROAD    CROSSINGS — INJURIES   AT.  2001 

2  Chase  v.  R.  R.  Co.,  208  Mass.  137. 

s  Railroad  v.  R.  R.  Co.,  168  Fed.  21,  1)3  C.  C.  A.  413,  21  L.  R.  A.   (N.S.) 

794. 
4  Dickinson  v.  R.  R.  Co.,  SI  N.  J.  L.  464,  37  L.  R.  A.   (N.S.)   150. 
f.  Bush  v.  R.  R.  Co.,  232  Pa.  St.  327.     See  note  46  L.  R.  A.    (N.S.)    702, 

where  authorities  are  collected. 

Sec.  2208.  Driver  of  an  automobile  may  rely  on  gateman  giving 
notice. 
The  jury  is  instructed  that  where  a  gate  or  a  flagman  is 
maintained  at  a  crossing,  a  person  driving  an  automobile  has  the 
right  to  assume  that  the  gate  will  be  lowered  if  a  train  is 
approaching,  or  that  a  signal  will  be  given,  so  that  there  is  no 
duty  or  obligation  resting  upon  such  driver  requiring  him  to 
stop,  look  and  listen  in  such  case.1 
i  Roby  v.  R.  R.  Co.,  130  La.  880,  58  So.  696. 

Sec.  2209.  Driver  of  automobile  placed  in  sudden  peril  at 
crossing. 
The  jury  is  instructed  that  where  the  driver  of  an  automobile 
is  placed  in  a  position  of  sudden  peril  or  in  imminent  danger 
in  attempting  to  cross  over  a  railroad  crossing  he  is  not  required 
to  act  with  the  same  degree  of  care  and  precaution,  as  lie  would 
under  other  circumstances  when  he  had  more  time  for  reflection 
and  deliberation.1 

So  therefore,  etc. 
iDickinson  v.  R.  R.  Co.,  81   N.  J.  L.  464,  37  L.  R.   A.    (N.S.)    150;   Hull 
v.  R.  R.  Co.,  60  Wash.   162;   Railroad  v.  Vidal,   1st    Fed.    707,    106 
C.  C.  A.  661. 

Sec.  2210.  Imputing  negligence  of  driver  to  occupant  of 
automobile. 
The  jury  is  instructed  that  the  negligence  of  a  driver  of  an 
automobile  in  approaching  a  railroad  crossing  in  failing  to  slow 
down  just  before  reaching  a  poinl  where  a  vie*  of  the  railroad 
track  could  be  had,  can  not  be  imputed  to  a  passenger  in  bucIj 
automobile  who  is  himself  no1  guilty  of  any  neglect.1 

aWachsmith   v.  Railroa-1.  233    Pa.   St.  465,  82   All.  7:,."..      Mm.   Co*    1018, 
679,  note  and  cases. 


2002  INSTRUCTIONS   TO   JURY. 

Sec.  2211.  Injury  caused  by  backing  train  on  vehicle  at 
crossing. 

You  must  find  that  the  backing  of  the  train  onto  the  wagon, 
resulting  in  the  injury,  was  done  by  the  servants  of  the  defend- 
ant railway  under  such  circumstances  as  evidences  want  of 
ordinary  care  on  the  part  of  such  servants,  showing  negligence 
on  their  part.  If  the  backing  was  accidental  and  without 
volition  on  the  part  of  the  agents  or  servants  of  the  defendant, 
then  it  would  not  be  chargeable  with  the  negligence  or  liable 
for  an  injury  resulting  therefrom.  To  make  the  defendant 
company  liable  for  the  injury  in  this  case  it  is  imperative  that 
it  be  made  to  appear  by  evidence  that  the  agents  of  defendant 
in  charge  of  the  train  negligently  backed  the  train  and  produced 
the  injury  sought  to  be  recovered  for  by  the  plaintiff  in  this 
action. 

If  the  train  of  defendant  was  standing  still,  with  its  rear 
end  occupying  a  part  of  the  public  crossing  only,  there  remaining 
space  sufficient  for  the  passing  and  repassing  of  teams,  it  would 
be  the  duty  of  the  servants  and  agents  of  defendant,  before 
backing  or  running  said  train  farther  onto  or  across  such  cross- 
ing, to  first  make  use  of  their  faculties  of  seeing  and  hearing  to 
ascertain  if  there  was  danger  of  injuring  someone,  to  learn  if 
the  crossing  was  occupied  or  not.  and  to  be  careful  so  as  not  to 
unnecessarily  inflict  any  injury.  And  if  the  agents  and  employes 
omitted  to  use  their  faculties,  but  instead,  without  warning  or 
signal,  suddenly  backed  their  train  onto  the  said  crossing  and 
injured  plaintiff,  the  said  employes  and  agents  would  be  guilty 
of  negligence,  so  as  to  make  the  defendant  company  liable  for 
any  resulting  injury.1 

i  J.  H.  Day,  J.,  in  L.  E.  <£  W.  R.  R.  Co.  v.  Stadler,  supreme  court,  unre- 
ported,  No.   2870    (14,  708). 

Sec.  2212.  Injury  to  child  climbing  over  train  stopping  on 
crossing — Negligence  under  such  circum- 
stances. 

If  you  find,  as  a  fact,  from  the  evidence  in  the  case,  that  the 
train  in  question  did  not  occupy  the  street-crossing  for  a  period 


RAILROAD    CROSSINGS — INJURIES   AT.  2003 

of  more  than  five  (5)  consecutive  minutes,  or  if  you  should  find 
that  such  train  did  occupy  said  crossing  for  more  than  five  (5) 
minutes,  hut  not  unnecessarily,  then  the  fact  of  the  train 
occupying  said  crossing  is  an  immaterial  matter  in  this  case, 
and  it  is  not  to  be  further  considered  by  you.  If,  however,  the 
plaintiff,  by  a  preponderance  of  the  evidence,  has  proven  that 
said  train  did  occupy  said  street-crossing  for  a  period  of  more 
than  five  (5)  consecutive  minutes  immediately  preceding  the 
injury  occurring  to  the  plaintiff,  and  that  such  occupancy  was  not 
necessary,  then  the  fact  of  such  unnecessary  occupancy  may  be 
considered  by  you,  together  with  any  other  proper  facts  and 
circumstances  that  may  be  in  evidence  in  the  case,  as  bearing 
upon  the  negligence  of  the  defendant.  If  such  train  did  so 
unnecessarily  occupy  said  crossing  for  more  than  five  (5)  con- 
secutive minutes,  there  was  not,  on  that  account  and  as  a  matter 
of  law,  any  obligation  upon  defendant's  servants  to  sound  a 
whistle,  ring  a  bell,  or  do  any  other  specific  act  before  starting 
said  train  in  motion  either  backwards  or  forwards;  l.ut  onder 
such  circumstances,  defendant's  servants  would  be  bound  to 
do  anything,  and  to  leave  undone  nothing  that  an  ordinarily 
prudent  man,  under  all  the  circumstances,  would  have  dour. 
Any  precaution  that  an  ordinarily  prudent  man  would  haw 
taken  under  the  circumstances,  and  any  warning  he  would  have 
given,  the  defendant  was  bound  to  give;  and  if  the  ordinarily 
prudent  man  would  have  taken  no  precaution,  or  would  have 
given  no  warning,  the  defendant  was  then  hound  to  take  qo 
precaution,  or  to  give  no  warning. 

The  law  did  not,  at  the  time  of  the  injury  complained  of, 
require  the  defendant  company  to  prevenl  persons  or  hoys  from 
going  upon  or  between  the  cars  of  its  train  while  the  Bame  was 
at  rest  over  the  street  crossing  in  question,  and  so  a  failure  upon 
the  part  of  the  defendant  to  warn  or  prevenl  plaintiff  Erom  so 
attempting  was  not  an  act  of  negligence  upon  the  pari  of  the 
defendant  that  would  entail  Liability  upon  the  defendant,  unless 
you  find  that  the  defendant  or  its  employes  had  knowledge  that 
plaintiff  was  upon  or  between  its  cars,  or  unless  you  hud  thai  an 
ordinarily  prudent  man,  under  the  circumstances,  would  by  BOine 


2004  INSTRUCTIONS   TO   JURY. 

precaution  have  known  that  the  piaintiff  was  upon  or  between 
its  ears. 

If  you  should  conclude  from  the  testimony  in  the  case  that  the 
defendant  or  its  employes  were  not  guilty  of  any  negligence, 
then  your  inquiry  may  cease,  for  in  such  case  your  verdict  should 
be  for  the  defendant,  no  cause  of  action. 

If  you  find  that  the  defendant  or  its  employes  were  guilty 
of  negligence,  you  will  then  determine  from  the  evidence  whether 
or  not  the  negligence  caused  the  injury  complained  of.  And  if 
you  find  that  the  defendant  was  negligent,  still  the  plaintiff 
shows  no  right  to  recover  unless  it  should  be  proven  that  the 
negligent  act  caused  the  injury  to  the  plaintiff,  and  that  the 
plaintiff  was  free  from  contributory  negligence,  as  I  shall  here- 
after charge  you.1 

i  W.   J.   Mooney,  J.,   in  L.  E.  &  W.  Ry.  Co.  v.  Mackey.     Approved   in  53 
O.  S.  370. 

Sec.  2213.     Same,    continued — Whether    child   climbing    over 
train  guilty  of  contributory  negligence. 

If  you  should  find  that  the  defendant  was  negligent,  and  that 
such  negligence  caused  the  injury,  you  will  go  on  and  determine 
this  further  question :  ' '  Was  the  plaintiff,  at  the  time  of  the 
injury  complained  of,  himself  in  the  exercise  of  ordinary  care, 
or  did  his  own  negligent  act  contribute  to  his  own  injury?" 
This  question  becomes  important  from  the  fact  that  if  it  should 
be  your  conclusion  from  the  testimony  in  the  case  that  the  plain- 
tiff was  injured  as  the  result  of  the  want  of  due  care  of  both 
the  plaintiff  and  defendant,  then  the  plaintiff  could  not  recover. 
The  plaintiff,  to  recover,  must  be  free  from  all  negligence  on 
his  part. 

The  plaintiff  here  was,  at  the  time  of  the  injury,  an  infant 
of  the  age  of  nine  (9)  years  and  two  (2)  months.  While  a 
child  of  that  age  is  not  bound  to  take  all  the  precaution  and 
exercise  all  the  care  that  an  adult  would  be  required  to  take 
and  exercise,  yet  this  plaintiff  was  required  to  use  all  care  that 
an  ordinary  prudent  boy  of  his  age  and  capacity  would  have 
exercised.     And  if  you  should   find   from   the   testimony  that 


RAILROAD    CROSSINGS — INJURIES   AT.  2005 

plaintiff,  by  reason  of  his  educational  advantages  and  experience, 
was  of  more  than  ordinary  capacity,  then  it  is  his  capacity,  as 
you  find  it  to  exist,  that  must  measure  his  duty  to  detect  and 
avoid  danger. 

Hence,  if  you  should  find  from  the  testimony  that  the  plain- 
tiff knew  that  it  was  dangerous  to  go  between  the  freight-cars 
at  the  time  in  question,  or  if  you  should  find  that  an  ordinary 
prudent'  boy  of  his  age  and  capacity  would  not  have  gone 
between  the  cars,  under  the  circumstances  as  you  shall  find 
them,  then  the  plaintiff  was  guilty  of  negligence  and  can  not 
recover.  It  is  not  necessary  that  plaintiff  should  have  appre- 
hended the  injury  that  did  occur;  all  that  is  necessary  is  that 
he  knew,  or  should  have  known,  that  the  situation  was  dangerous, 
and  that  an  injury  of  some  kind  would  probably  befall  him  in 
that  situation. 

If  you  should  find  that  the  injury  happened  without  the 
want  of  care  of  either  plaintiff  or  defendant — that  is  to  say, 
if  each  party  was  not  negligent — then  the  injury  would  be  the 
result  of  a  mere  accident,  and,  of  course,  in  such  ease  the  plain- 
tiff could  not  recover,  but  your  verdict  should  he  for  the  defend- 
ant— no  cause  of  action. 

If,  however,  it  should  be  found  by  you  that  the  defendant 
company  was  negligent,  and  that  said  negligence  caused  the 
injury  complained  of,  and  you  should  further  find  that  the 
plaintiff,  at  the  time  of  the  occurrence  of  said  injury,  was  in 
the  exercise  of  the  due  care  to  which  he  was  hound,  as  1  have 
charged  you,  then,  and  not  otherwise,  is  the  plaintiff  entitled 
to  recover  in  this  action.1 

i  W.  T.  Mooney,  J.,  in  L.  E.  &  W.  Ry.  v.  Mackey.    Approved  in  :.:!  I  >.  s. 
370. 

Sec.  2214.  Shunting  cars,  while  making  flying  switch,  across 
street  crossing. 
The  jury  is  instructed  that  it  is  the  duly  of  a  railroad 
company  not  to  make  "flying  switches"  across  a  busy  street  of 
a  city  without  exercising  ordinary  care  in  giving  such  warning 
to  travelers  in  the  streets  as  will  he  reasonably  commensurate 


2006  INSTRUCTIONS    TO   JURY. 

with  the  dangers  incident  to  such  act.  To  make  such  flying 
switches  without  warning  and  signal,  and  with  no  other  precau- 
tions to  ensure  the  safety  of  passers-by  constitutes  negligence.1 

i  Williams  v.  Railway,   63   Wash.   57,    114   Pac.   888.     Ann.   Cas.   1912,  D. 
340. 

Sec.  2215.  Presumption  that  every  person  exercises  care  for 
his  own  safety  when  in  danger — Burden  of 
proof  on  defendant  to  prove  decedent  did 
not  look  and  listen  before  crossing  track. 

The  jury  is  instructed  that  it  is  a  presumption  of  law  that 
every  man  exercises  due  care  for  his  own  safety  when  in  a  place 
of  danger,  and  the  presumption  is  that  the  deceased  did  so  when 
he  approached  the  crossing. 

The  court  instructs  the  jury  that  the  plaintiffs  need  not 
affirmatively  prove  that  the  deceased  looked  and  listened  for 
the  train  before  coming  upon  the  crossing.  The  presumption  is 
that  he  did  so,  and  the  burden  of  proof  that  he  did  not  is  on  the 
defendant  railway  company,  and  it  must  be  proved  by  a  pre- 
ponderance of  the  evidence.1 

i  Evans  v.  Railroad,  37  Utah,  431.  108  Pac.  638.  Ann.  Cas.  1912,  C.  259, 
where  the  above  was  approved. 

Sec.  2216.  Defendant  liable,  though  statutory  signals  given — 
When  other  acts  of  negligence  charged. 
The  jury  is  instructed  that  although  the  defendant  company 
may  have  complied  with  the  statutory  requirements  of  ringing 
the  bell  or  sounding  the  whistle  when  approaching  a  public  cross- 
ing, yet  it  is  bound  to  adopt  such  other  reasonable  measures  for 
the  safety  of  persons  in  passing  over  the  crossing  as  ordinary  and 
reasonable  prudence  may  require,  considering  the  danger,  travel, 
and  surrounding  circumstances.  If  it  appears  from  the  evidence 
that  some  one  of  the  negligent  acts  charged  in  the  complaint 
caused  the  injury  to  plaintiff,  be  may  recover.1 

i  This  is  merely  a  suggestive  proposition.  It  was  approved  in  Evans  v. 
R.  R.,  37  Utah,  431.  Ann.  Cas.  1912,  C.  259.  See  Bruggeman  v. 
Railroad,  147  Iowa,  187,  123  N.  W.  1007.  Ann  Cas.  1912,  876, 
where    similar  charge   was   given    and   criticized. 


CHAPTER   CXXIX. 

RAILROADS— MISCELLANEOUS  CASES  OF  NEGLI- 
GENCE.    LICENSEES— TRESPASSERS— FIRES- 
STOCK  BLOCKING  FROGS— SWITCHES. 


8EC. 

2217.  Duty    to    persons    habitually 

permitted  to  travel  over 
tracks. 

2218.  Common  use  of  tracks  by  pub- 

lic as  passageway. 

2219.  Injury    to     one     walking    on 

track — Company  bound 
to  give  warning  after  dis- 
covery. 

2220.  Duty  of  company  to  trespass- 

ers on  track  arises  only 
after  discovery. 

2221.  Required  to  guard  against  fire 

from  locomotive. 

2222.  Negligent    communication    of 

fire  from  engine. 

2223.  Injury  to  stock  on  railroad. 

2224.  Escape  of  horse  by  reason  of 

insufficient  fence. 

2225.  Misplacement    of    switch    for 

criminal  purpose. 

2226.  Failure  to  block  frog. 

2227.  Omission     to    adjust,     fill    or 

block  switch. 


SEC. 

2228.  Liability   of  company   for   in- 

jury to  person  standing 
on  depot  platform,  from 
mail  pouch  thrown  from 
mail  car. 

2229.  Injury  to  person  traveling  <>n 

right  of  way  long  used  by 
public  caused  by  lump  of 
coal  falling  from  car,  pro- 
ducing unconscious  con- 
dition, being  struck  bj 
yard  engine  while  in  such 
condition. 

1.  Company  owes  plaintiff  no 

duty  except  to  refrain 
from  willfully  and  negli- 
gently injuring  bin  after 
discovering  liis  presence 
and  peril. 

2.  Duly    upon    discovery    of 

peril,  to  exercise  ordinary 
care  to  avoid  injury. 

3.  Must  be  something  in  ap- 

pearance of  plaintiff  to 
indicate  that  he  was  help- 
less and  in  danger  Oth- 
erwise it  may  be  assumed 

lie  will  leave  <  be  I  rack. 


Sec.  2217.     Duty  to  persons  habitually  permitted  to  travel  over 
tracks. 
If  you  find  from  the  evidence  in  this  case  thai  the  defendant 
companies,  for  a  long  timr  prior  to  the  accidenl  complained  of 

2007 


2008  INSTRUCTIONS   TO   JUBY. 

in  the  petition,  permitted  persons  to  travel  and  pass  habitually 
over  their  road  at  the  point  where  the  accident  occurred  without 
objection  or  hindrance,  they  should,  in  the  management  of  trains 
so  long  as  they  acquiesce  in  such  use,  be  held  to  anticipate  the 
continuance  thereof,  and  are  bound  to  exercise  care,  having  due 
regard  to  such  probable  use  and  proportioned  to  the  probable 
danger  to  persons  so  using  such  crossing,  and  if  you  find  they 
did  not  exercise  such  care,  and  that  the  plaintiff  exercised 
reasonable  care  on  his  part,  then  your  verdict  on  this  branch  of 
the  case  should  be  for  the  plaintiff.1 

J  From  Caldwell  v.  P.  C.  &  T.  R.  R.  Co.,  51  O.  S.  609.  The  common 
pleas  court  was  reversed,  but  this  charge  was  not  affected  thereby. 

Sec.  2218.     Common  use  of  railroad  tracks  by  public  as  pas- 
sageway. 

You  are  instructed,  as  matter  of  law,  that  the  plaintiff  was  not 
a  trespasser  by  going  upon  the  track  in  question.  That  is,  if 
you  find  from  the  proof  in  the  case  that  the  railroad  company 
had  knowledge  that  its  tracks  were  being  used  at  this  point  by 
people  to  go  to  and  from  their  work  at  the  mill  or  other  places, 
and  that  the  railroad  company  had  knowledge  of  such  use  of  its 
tracks  and  acquiesced  therein,  and  the  plaintiff  was  not  bound 
to  go  to  his  work  by  any  particular  route,  and  had  a  right  to 
go  upon  and  over  the  track  where  he  was  when  injured,  but  in 
doing  so  it  was  his  duty  to  exercise  ordinary  care  to  prevent 
being  injured.  *  *  *  If  these  tracks  in  question  were  used  by 
the  public  indiscriminately  as  a  place  of  travel  to  the  mill  or 
other  places,  then  it  would  be  the  duty  of  the  company  to  so  run 
its  trains  and  to  exercise  ordinary  care  in  the  use  of  its  trains 
with  a  knowledge  of  the  way  in  which  it  permitted  its  tracks 
to  be  used.1 

1  Burke  v.  Hitchcock,  Trumbull  Co.  Com.  Picas.     Cillmer.  J. 

Long  accustomed  usage  of  a  passageway  on  tracks  of  company  by  tres- 
passers, charges  the  company  with  notice  and  it  is  under  obligation 
to  keep  a  careful  lookout  at  such  places.  Wood  on  Railroads, 
sec.  320. 


RAILROADS MISCELLANEOUS  CASES  OF  NEGLIGENCE.   2009 

Sec.  2219.     Injury  to  one  walking  on  track— Company  bound 
to  give  warning  after  discovery. 

"If  it  be  found  from  the  testimony  that  the  plaintiff,  at  the 
time  he  was  injured,  was  walking  upon*  the  main  track  of  a 
railroad,  and  was  not  using  the  county  road  as  a  crossing  to 
reach  the  point  he  wished,  the  fact  that  no  signal  was  given 
by  the  engineer  in  charge  of  the  engine  of  the  moving  of  the 
engine  and  cars  attached  toward  the  crossing  would  not  be 
such  neglect  as  would  render  the  company  liable  for  the  injury, 
unless  the  conductor  or  engineer  in  charge  of  the  train  or 
engine  knew,  at  the  time  the  train  was  being  backed,  that 
the  plaintiff  was  on  the  track,  and  they  then  failed  to  give  him 
warning,  by  signal  or  otherwise,  of  the  approach  of  the  train 
in  the  same  direction  on  the  same  track."1 
i  From   Railroad    Company   v.   Depew,   40   0.   S.    121. 

Sec  2220.    Duty  of  company  to  trespassers  on  track — Arises 
only  after  discovery. 

The  law  imposed  no  duty  upon  the  defendant  to  require  its 
station  agents,  watchmen,  flagmen  or  switch  tenders  having 
duties  to  perform  at  certain  points,  to  watch  over  the  tracks  of 
the  roadway  from  such  places  of  their  special  duty,  to  warn 
persons  on  the  track  without  right,  and  having  no  business  with 
the  defendant,  to  get  off  the  track,  or  otherwise  caul  ion  them. 
The  defendant  is  only  accountable  for  the  action  of  its  employes 
after  they  had  discovered  or  had  reason  to  think  or  believe  the 
deceased  was  on  the  track  and  in  danger  of  being  hurt  ;  after 
they  had  discovered  the  boy  on  the  track,  or  had  reason  to  think 
or  believe  he  was  there,  they  had,  of  course,  no  right  to  wantonly 
run  over  him.  But  the  servants  of  the  defendanl  who  had  any 
duties  to  perform  in  regard  to  tin  running  of  this  train,  did 
their  whole  duty  if  they  <H<1  nil  they  could  with  Hi''  means  they 
had,  adapted  to  that  purpose,  to  avoid  injury  to  the  decea  ed. 
Strictly  the  defendant  is  not  liable  in  this  case,  unless  its  said 
servants  who  had  duties  to  perform  in  reference  to  the  running 


2010  INSTRUCTIONS    TO    JURY. 

of  this  train,  after  the  boy  was  discovered,  or  they  had  reason 
to  believe  the  boy  was  there  and  in  danger,  acted  with  such  a 
want  of  care  and  with  such  a  reckless  disregard  of  the  con- 
sequences as  is  difficult  to  be  distinguished  from  an  intentional 
wrrong.  If  they  acted  with  this  recklessness  and  want  of  care, 
your  verdict  should  be  for  the  plaintiff;  otherwise  it  should  be 
for  the  defendant.1 

i  John  W.  Heisley,  J.,  in  Spink  case,  in  Cuyahoga  county,  O. 

A    railway   owes   no   duty   to   a   trespasser    on    its   track   further   than   to 

refrain    from    inflicting   a   willful    or    malicious    injury.     Wood    on 

Railroads,  sec.  320. 

Sec.  2221.     Required  to  guard  against  fire  from  locomotive. 

Railroad  companies  are  in  no  sense  insurers,  but  in  this  state 
are  required  by  statute,  in  the  use  of  their  engines,  to  prevent 
loss  or  damage  by  fire,  to  place  on  their  locomotives,  or  engines, 
and  keep  in  good  order,  some  device  or  contrivance  that  will 
most  effectually  guard  against  the  emission  of  fire  and  sparks 
which  would  otherwise  be  thrown  out  by  such  engine,  or  loco- 
motive, or  cars,  having  regard  to  the  enterprise  in  which  they 
are  engaged  and  the  objects  to  accomplish,  and  the  lawT  places  no 
higher  or  further  duty  upon  them  than  in  this  particular;  and 
when  they  have  performed  that  duty  required  of  them  by 
statute,  they  are  not  responsible  for  accidental  fires  caused  by 
the  escape  of  sparks  thrown  from  their  engines.1 

i  Approved  in  The  L.   &   M.  R.   R.  Co.  r.  Kelly,   10  0.  C.  C.  322,  327;   C. 
L.  &  W.  R.  R.  Co.  v.  Fredenbur,  3   C.  C.  23. 

Sec.  2222.     Negligent  communication  of  fire  from  engine. 

To  entitle  the  plaintiffs  to  a  verdict  at  your  hands  it  is 
incumbent  upon  plaintiffs  to  prove  by  a  preponderance  of  the 
evidence,  that  is  by  the  greater  weight'  of  the  evidence,  that  the 
fire  in  question  was  caused  by  a  spark  or  sparks  emitted  from 
an  engine  of  the  defendant,  the  H.  V.  Ry.  Co.,  passing  over  its 
line  of  railway  in  a  northerly  direction,  as  averred  in  the  peti- 
tion. 


RAILROADS MISCELLANEOUS    CASES   OF   NEGLIGENCE.        2011 

The  defendant  is  not  required  to  prove  hmv  the  fire  was  caused 
to  entitle  it  to  a  verdict.  The  burden  is  upon  the  plaintiffs  to 
show  by  a  preponderance  of  the  evidence  that  it  was  caused  by- 
sparks  from  the  defendant's  engine. 

You  will  observe  that  no  one  has  testified  in  this  case  to 
seeing  the  fire  communicated  from  the  engine  of  the  defendant 
company  to  the  building  of  the  C.  I.  M.  &  C.  S.  Co.  Its  com- 
munication from  the  fire  from  the  engine  of  the  defendant  to 
the  buildings  of  the  C.  I.  M.  &  C.  S.  Co.,  is  the  ultimate  fad 
to  be  proven  by  the  plaintiffs  to  entitle  them  to  recover  in 
this  case. 

When  a  witness  sees  the  ultimate  fact  to  be  proven  and  testi- 
fies to  it  in  court,  this  is  what  is  known  as  direct  evidence.  Hut 
it  is  not  always  possible  to  establish  a  fact  by  direct  evidence 
and  this  is  not  required  under  the  law.  A  fact  may  be 
established  by  circumstantial  evidence.  Circumstantial  evidence 
is  the  proof  of  facts  which  stand  in  such  relation  to  the  ultimate 
fact  to  be  established  by  proof  that  the  ultimate  fact  may  be 
reasonably  inferred  from  the  proven  fads. 

The  question  in  every  case  is  what  weight  should  be  given  to 
the  evidence,  whether  it  be  direct  or  circumstantial.  In  civil 
cases  it  suffices  to  establish  the  plaintiff's  case  if  the  evidence, 
whether  direct  or  circumstantial,  creates  a  preponderance  of 
the  proof  in  favor  of  the  plaintiff. 

And  that  is  the  question  to  be  determined  by  you  in  this  ease. 
Does  the  proof  of  the  surrounding  facts  and  circumstances  create 
a  preponderance  of  the  evidence  in  favor  of  the  plaintiff's  claim 
that  the  fire  was  caused  by  sparks  from  an  engine  on  the  line  of 
the  defendant's  road,  as  alleged  in  the  petition  f 

You  should  consider  all  of  the  evidence  in  this  ease  and  ass 
yourselves  is  there  evidence  of  greater  weighl  tending  to  establish 
the  plaintiffs'  claim  that  this  fire  was  caused  by  sparks  from  the 
defendant's  engine  than  there  is  that  it  was  caused  in  seme  other 
way.  If  your  answer  to  that  question  is  in  the  affirmative,  then 
your  verdict  should  be  for  the  plaintiffs.  Bui  if  your  answer  is 
in  the  negative,  your  verdict  should  be  for  the  defendant. 


2012  INSTRUCTIONS    TO    JURY. 

The  petition  avers  that  on  the  day  in  question,  at  about  six 
o'clock  p.  m.,  the  buildings  were  set  on  fire  by  sparks  emitted 
from  an  engine  passing  over  the  defendant's  line  of  road.  It  is 
not  essential  to  the  plaintiffs'  right  to  recover,  gentlemen  of 
the  jury,  that  it  should  be  proven  that  the  sparks  were  emitted 
from  the  engine  at  the  hour  of  six  o'clock.  The  essential  matter 
to  be  proven  by  the  plaintiffs  is  that  the  fire  which  occurred  on 
that  day  was  caused  by  sparks  emitted  from  an  engine  passing 
along  on  the  defendant's  road  some  time  before  the  fire,  but  the 
hour  at  which  the  engine  passed  need  not  be  proven  to  have  been 
just  at  six  o'clock.  But  it  is,  of  course,  important  for  you  to 
consider,  gentlemen  of  the  jury,  the  time  at  which  the  engine  of 
the  defendant  company  passed  north  on  the  defendant's  line 
of  road  on  that  afternoon,  and  the  time  when  the  fire  occurred, 
in  determining  whether  or  not  the  cause  of  the  fire  was  sparks 
from  the  defendant's  engine.  That  is  you  should  consider  the 
time  at  which  defendant's  trains  passed  north  on  that  afternoon 
in  relation  to  the  time  when  the  fire  started  upon  the  question  of 
the  probability  of  the  fire  having  been  caused  by  sparks  from 
an  engine  on  the  defendant's  road. 

If  you  find  for  the  plaintiffs,  your  verdict  should  be  in  such 
an  amount  as  you  may  find  represents  the  actual  loss  caused  to 
the  property  of  the  C.  I.  M.  &  C.  S.  Co.  by  the  fire.  But  this 
must  not  exceed  the  amount  paid  by  the  plaintiffs  to  the  C.  I.  M. 
&  C.  S.  Co.  and  interest  on  the  same  from  the  time  when  the 
insurance  companies  made  payment  to  the  C.  I.  M.  &  C.  S.  Co. 
to  this  date  at  the  legal  rate  of  six  per  cent,  per  annum.1 

i  Aetna  Ins.  Co.,  et  al.,  v.  The  Hocking  Valley  Ry.  Co.,  et  al.,  Com.  Pleas 
Court,  Franklin  Co.,  O.     Bigger,  J. 

Sec.  2223.     Injury  to  stock  on  railroad. 

"If  the  jury  find  that  the  horse,  though  seen  by  the  engineer, 
was  running  upon  the  track,  if  he  left  it  and  continued  to  run, 
not  near  enough  to  have  been  in  danger,  and  the  whistle  was 
blown,  and  the  horse  returning  to  the  track,  the  brakes  were 
applied  and  the  train  was  checked,  but  could  not  probably  then 


RAILROADS — MISCELLANEOUS  CASES  OF  NEGLIGENCE.   2013 

have  been  checked  before  the  horse  was  struck  by  the  train,  the 
plaintiff  can  not  recover  on  the  ground  of  the   negligence  or 
carelessness  of  the  defendant  in  running  the  train. ' ' ' 
i  Railway  Co.  v.  Smith,  38  0.  S.  410. 

Sec.  2224.     Escape  of  horse  by  reason  of  insufficient  fence. 

"The  company  being  bound  to  maintain  a  sufficient  fence,  the 
plaintiff  had  a  right  to  rely  on  this,  and  to  turn  his  horse  into 
the  inclosure;  and  if  he  escaped  therefrom  by  reason  of  the 
insufficiency  of  the  fence,  and  went  upon  the  track  and  was 
killed,  the  company  is  liable. ' '  * 
i  Railway  Co.  v.  Smith,  38  0.  S.  410. 

Sec,  2225.    Misplacement  of  switch  for  criminal  purpose. 

The  defendant  company  can  not  be  held  responsible  for  the 
death  of  one  of  its  employes  caused  by  circumstances  of  which 
it  had  no  knowledge  or  notice  long  enough  before  his  death  to 
have  interposed  to  save  him,  or  which  circumstance  or  circum- 
stances it  had  not  reasonable  ground  to  expect  or  anticipate 
would  occur  when  and  where  they  did  occur. 

The  law  does  not  require  a  railroad  company  in  Ohio  to 
anticipate  or  presume  that  a  criminal  will  break  or  open  its 
locks  and  misplace  its  switches  in  the  night.  Nor  is  there  any 
rub  of  law  that  requires  a  railroad  company  to  keep  either  a  man 
or  a  light  at  every  switch  at  all  times. 

The  presumption  of  law  is  that  criminals  will  not  break  and 
misplace  railroad  property;  and  the  railroad  company  may 
safely  rely  on  this  presumption  till  the  contrary  Eacl  is.  in  any 
case,  brought  to  their  knowledge,  or  until,  from  known  facts. 
they  have  reasonable  cause  to  expect  or  anticipate  it. 

If  you  find  from  the  testimony  that  the  switch  was  misplaced 
by  someone  for  criminal  purpose,  and  thai  the  misplaceraenl  of 
the  same  was  unknown  to  defendant,  or,  with  the  exercise  of 
ordinary  care,  could  not  have  been  known  by  it  in  time  to  avert 
the  danger  and  prevent  the  injury,   or,   with   the   exercise  of 


2014  INSTRUCTIONS   TO   JURY. 

ordinary  care  on  its  part,  could  not  have  been  made  known  to 
those  running  the  train  in  time  to  prevent  the  injury,  the 
defendant  would  not  be  liable  for  such  displacement  and  con- 
sequent injury,  unless  such  displacement  could  have  been  pre- 
vented by  the  exercise  of  ordinary  care  on  its  part.1 

i  Geo.  F.  Robinson,  J.,  in  X.  Y.  P.  &  0.  R.  R.  Co.  v.  Tidd,  supreme  court, 

Xo.  2507.     Affirmed  by  circuit  court  and  see. 
Misplacement  of  switch  by  evil  disposed   person,  causing  injury,   regarded 

as  an    inevitable   accident.     Frust   v.    Potter,    17    111.   416;    Deyo   v. 

X.  Y.  R.  R.  Co.,  34  X.  Y.  9. 

Sec.  2226.     Failure  to  block  a  frog. 

As  bearing  on  these  questions,  it  is  admitted  in  the  pleadings, 
and  not  controverted  in  the  trial,  that  the  frog  of  the  switch 
at  which  the  injury  occurred  was  not  blocked.  It  is  my  duty 
to  charge  you,  as  a  matter  of  law,  that  the  failure  on  the  part 
of  a  railroad  company  to  block  a  frog  is,  in  itself,  negligence, 
and  such  failure  being  admitted  in  the  case  by  the  defendant, 
you  will  be  authorized  to  determine  at  once  the  first  of  the 
questions  to  which  I  have  just  referred  in  the  affirmative,  and 
decide  that  the  defendant  was  guilty  of  negligence,  and  other 
facts  appearing  and  existing,  the  plaintiff  would  be  entitled  to 
recover.1 

i  W.  T.  Mooney,  J.,  in  C.  &  E.  R.  R.  Co.  v.  Purviance.  R.  S.,  sees.  8516-31, 
requires  railroads  to  adjust,  fill  or  block  the  frogs,  switches,  etc., 
so  as  to  prevent  the  feet  of  its  employees  from  being  caught  therein. 
Xeglect  to  comply  with  statutory  duty  is  negligence  per  se.  Wood 
on  Railways,  sec.  397. 

Sec.  2227.     Omission  to  adjust,  fill  or  block  switch. 

Your  attention  is  called  to  the  statute  on  that  subject.  It  has 
been  enacted  by  the  legislature  of  Ohio,  and  such  was  the  law 
at  the  time  this  injury  occurred,  that  "Every  railroad  corpora- 
tion operating  a  railroad  or  part  of  a  railroad  in  this  state  shall, 
before  the  first  day  of  October  in  the  year  1888,  adjust,  fill,  or 
block  the  frogs,  switches,  and  guard-rails  on  its  tracks,  with  the 
exception  of  guard-rails  on  bridges,  so  as  to  prevent  the  feet 


RAILROADS — MISCELLANEOUS  CASES  OP  NEGLIGENCE.   2015 

of  its  employes  from  being  caught  therein,  and  the  work  shall 
be  done  to  the  satisfaction  of  the  railroad  commissioner. ' ' l 

Now  then,  taking  into  account  the  law,  that  goes  to  the  jury 
as  a  part  of  the  evidence,  for  them  to  consider  whether  or  not 
it  was  negligence  on  the  part  of  the  defendant  in  Leaving  any 
frog,  switch,  or  guard-rail  unblocked ;  and  you  may  consider,  or 
first  I  should  say  to  you,  perhaps,  that  it  is  for  the  jury  to  judge 
of  the  credibility  of  the  witnesses,  the  credibility  of  the  testimony, 
the  confidence  that  they  should  place  in  the  statements  of  the 
witnesses. 

Now,  going  back  to  this  matter  of  the  obligation  of  the  com- 
pany to  block  these  switches,  frogs,  and  guard-rails,  it  is  alleged 
by  the  plaintiff  that  the  defendant  carelessly  omitted  to  adjust, 
fill,  or  block  this  switch  where  the  plaintiff  caught  his  foot.  A 
great  deal  of  evidence  was  submitted  to  you  as  to  the  practica- 
bility of  doing  that.  And  you  are  to  take  that  into  account  and 
say  whether  it  is  practicable,  whether  it  would  obviate  the 
danger  or  diminish  the  danger  of  being  caught  there  at  that 
place  where  the  plaintiff  claims  he  was  caught,  or  where  his 
foot  was  caught.  Consider  whether  it  would  interfere  with  the 
operation  of  the  road,  and  the  operation  of  the  cars  over  these 
tracks,  seriously;  and  determine  that  question,  whether  it  is 
practicable,  on  the  whole,  to  block  that  place,  whether  the  omis- 
sion to  block  it  was  negligence  on  the  part  of  the  company,  taking 
into  account  all  the  evidence  on  that  subject,  taking  the  opinions 
of  the  witnesses  as  to  how  the  tracks  are  to  be  used  there,  their 
statements  on  that  subject,  what  would  be  lie'  openings  there 
with  a  block  in  there,  when  the  switch  was  turned,  and  whether 
that  aperture  or  opening  between  the  rail  and  the  block  when  the 
switch  is  open,  whether  that  would  leave  the  same  danger  that 
would  exist  without  the  blocking,  whether,  with  that  block  there, 
it  would  prevent  the  split  of  the  rail  from  being  ''lose  to  tin- 
stationary  or  bent  rail,  as  they  call  it,  so  as  to  produce  the 
danger  of  derailing  the  cars  that  go  across  there.  Take  all 
those  matters  into  account,  and  say  whether,  fairly  and  reason- 


iCode,  sec.  9009,  9009-1. 


2016  INSTRUCTIONS   TO    JURY. 

ably,  there  ought  to  have  been  a  block  there;  and  then  say 
whether  you  find  it  established  by  a  preponderance  of  the  evi- 
dence that  the  defendant  was  negligent  in  not  blocking  it  there. 
And  if  you  find  that  that  is  made  out  by  the  evidence,  why,  then 
you  may  take  that  as  established,  and  that  will  be  one  step 
towards  a  verdict  for  the  plaintiff.  If  that  is  not  made  out,  if 
you  find  that  it  is  not  practicable,  if  you  find  that  the  defendant 
was  not  negligent  in  failing  to  block  that  place  there,  why,  then 
that  is  the  end  of  your  inquiry,  and  your  verdict  must  be  for 
the  defendant,  because  that  is  the  negligence  charged  in  the 
petition.  But  if  you  find  that  is  established,  as  I  have  said, 
then  go  further  and  ascertain  whether  it  is  made  out  that  the 
plaintiff  was  caught  in  that  way. 

I  should  say  to  you  that  the  law  on  this  subject,  requiring 
these  frogs,  switches,  and  guard-rails  to  be  blocked,  is  to  be 
taken  into  account  as  the  requirements  of  the  legislature  on 
that  subject,  and  in  view  of  all  the  facts  and  situation  as  to 
whether  that  was  negligence  in  failing  to  block  that  place. 
Although  the  law  might  require  it,  still  it  does  not  follow,  as 
a  matter  of  course,  that,  because  the  law  requires  it,  the 
defendant  was  negligent  in  not  complying  with  it;  but  that  may 
be  taken  into  account  on  this  subject,  and  it  is  for  you,  on  all 
the  facts  in  evidence  and  the  situation  there,  to  say  whether  the 
failure  of  the  defendant  to  put  a  block  there  was  negligence. 
Ts  that  made  out?  Then  consider  whether  the  plaintiff  was 
caught  there  as  he  says,  whether  that  is  made  out — for  he  has 
to  make  that  out — consider  whether  his  own  negligence  con- 
tributed in  any  way  to  his  injury  in  performing  his  work  there, 
going  in  between  the  cars  as  he  did,  if  he  went  in  between  them, 
his  acts  there.  Look  it  all  over,  consider  everything.2 
The  following  requests  were  given  by  the  court: 
If  W.,  when  he  went  in  to  uncouple  the  car  at  and  in  the 
vicinity  of  the  switch  in  question,  knew,  or,  by  the  exercise  of 


2  Gilbert  Harmon,  J.,  in  The  L.  S.  &  M.  S.  Ry.  v.  Winslow.  supreme  court. 
No.  4357.  Settled  and  dismissed  in  supreme  court,  but  charge 
affirmed  by  circuit  court. 


RAILROADS-MISCELLANEOUS   CASES   OF   NEGLIGENCE.       2017 

ordinary  observation  or  reasonable  skill  and  diligence  in  his 
department  of  service,  he  might  have  known  that  he  was  going 
to  be  exposed  to  the  danger  and  risk  of  having  his  foot  caught 
in  the  movable  rail  of  said  switch,  and,  notwithstanding  such 
knowledge  or  means  of  knowledge,  he  stepped  in  to  uncouple 
the  said  cars,  he  assumed  the  risks  of  being  so  injured,  and 
waived  all  damages  and  injury  that  should  thereby  resull  to  him. 
If  the  plaintiff,  after  having  a  reasonable  opportunity  of 
becoming  acquainted  with  the  risks  and  perils  of  his  service, 
accepts  them,  he  can  not  complain  if  he  is  subsequently  injured 
by  such  exposure. 

The  company  did  not  guarantee  to  the  plaintiff  the  absolute 
safety  and  sufficiency  of  its  machinery  or  appliances,  bu1  was 
bound  to  exercise  only  ordinary  and  reasonable  care;  that  is, 
such  a  degree  of  care  and  prudence  as  ordinarily  prudenl  per- 
sons or  corporations  engaged  in  like  business  exercise  under 
similar  circumstances.  The  railroad  company  was  not  bound 
to  use  extraordinary  care,  nor  was  it  required  to  do  what  was 
impracticable  or  unreasonable. 

If  the  jury  find  from  the  evidence  in  this  case  that  it  was 
impracticable  to  so  adjust,  block,  or  fill  the  movable  rails  of 
this  switch  at  the  place  where  the  injury  happened,  then  it 
was  not  negligence  on  its  part  in  omitting  so  to  adjust,  block, 
or  fill  the  movable  rails  of  said  switch. 

If  the  defendant  company  adopted  such  methods  as  w<  re 
reasonable  and  practicable  for  the  safe  running  of  its  trains,  as 
well  as  to  guard  against  injury  to  its  employees,  al  the  place 
where  this  injury  happened,  then  it  used  and  exercised  ordinary 
and  reasonable  care,  and  can  not  he  held  Liable  for  any  injury 
happening  to  said  plaintiff  at  said  switch,  even  though  his  foot 
was  caught  therein. 

The  omission  of  the  railroad  company  to  comply  with  the 
provisions  of  the  statute  requiring  frogs  and  switches  to  lie 
blocked  is  not.  in  and  of  itself,  conclusive  proof  of  negligt  ace 
that' will  render  a  railroad  company  liable  tor  .-in  injury  result- 
ing from  such  omission,  but  such  omission  may  be  and  should 


2018  INSTRUCTIONS   TO   JURY. 

be  considered  by  the  jury  in  connection  with  all  the  other  facts 
and  circumstances  of  the  case. 

If  the  jury  find  that  the  plaintiff  knew  how  these  movable 
rails  were  constructed  and  operated,  or,  by  the  exercise  of  rea- 
sonable care  and  prudence  on  his  part  in  the  performance  of 
his  duties,  should  have  known  thereof,  and  that  the  company 
insisted  upon  maintaining  such  condition  and  construction,  and 
thereafter  continued  to  and  did  remain  in  the  service  of  the 
defendant,  then  he  took  upon  himself  and  assumed  all  the  usual 
risks  and  perils  incident  thereto.3 

s  Given  by  request  by  Harmon.  J.,  in  The  L.  S.  &  M.  S.  Ry.  v.  Winslow. 
Under  the  Oliio  law  the  United  States  Circuit  Court  held  that 
where  two  railway  companies  receive  cars  from  each  other  over 
a  delivery  track  at  a  certain  point,  a  person  employed  by  one 
of  them  to  take  the  number  of  its  cars  and  inspect  their  seals,  as 
trains  are  made  up  at  such  place  by  the  other,  is  an  employee  of 
the  latter.     Alkyn  r.  Wabash  Ry.  Co.,  41  Fed.  193. 

Sec.  2228.  Liability  of  company  for  injury  to  person  standing 
on  depot  platform,  from  mail-pouch  thrown 
from  mail-car. 

If  you  find  from  the  evidence  that  the  mail  agent  was  in  the 
employ  of  the  postoffice  department  of  the  United  States  gov- 
ernment, and  was  not  in  the  employ  of  the  defendant  railway 
company,  and  was  not  under  the  control  or  direction  of  the 
defendant  company,  or  any  of  its  agents  or  employees,  then 
said  defendant  Avould  not  be  liable  for  any  of  his  negligent  acts. 
If  you  find  the  defendant  railway  company  was  negligent  in 
carrying  the  United  States  mails  on  its  trains,  it  was  its  duty 
to  make  such  arrangements  for  the  delivery  of  such  mails  at  the 
stations,  as  not  to  unnecessarily  endanger  the  passengers  of 
said  defendant  company,  or  those  lawfully  on  its  platform  and 
grounds.  And  if  it  was  required  of  the  said  defendant  com- 
pany   by    the    postoffice    department    of    the    United    States    to 

deliver  the  mail-bags  on  the  platform  of  the  depot  at  , 

it  was  the  duty  of  the  said  defendant  company  either  to  stop 
its  trains  at  ,  or  to  run  its  trains  at  such  rate  of  speed 


RAILROADS — MISCELLANEOUS  CASES  OF  NEGLIGENCE.   2019 

past  said  depot  as  not  to  unreasonably  endanger  the  passengers 
of  said  company,  or  those  lawfully  on  its  platform  or  grounds, 
or  to  so  guard  said  platform  and  to  give  notice  to  the  people 
lawfully  thereon,  as  not  to  expose  them  to  unnecessary  or  un 
reasonable  danger. 

And  if  said  railroad  company  ran  its  trains  a1  such  unreason- 
ably high  rate  of  speed  past  said  station,  and  knowingly  per- 
mitted the  mail  agent  to  throw  off  the  mail-bags  up  mi  the  plat- 
form of  said  station,  without  giving  due  notice  to  the  persons 
lawfully  thereon,  or  in  some  way  protecting  them  from  the 
danger  thereof,  said  railroad  company  would  be  Liable  for  any 
damage  caused  by  the  negligence  of  the  agents  and  servants 
the  company  in  running  said  train,  and  in  permitting  said 
mail-bags  to  be  thrown  off  without  due  notice  to  the  persons 
lawfully  on  said  platform,  or  in  some  other  way  protecting  them 
from  unreasonable  and  unnecessary  danger.  It  is  left  to  you 
as  a  question  of  fact  to  say  whether  the  train  to  which  the 
mail-car  was  attached  was  run  at  such  high  rate  of  speed  as  to 
be  negligence  of  the  part  of  the  company,  or  whether  the  agents 
or  servants  of  the  company  were  negligent  in  failing  to  give 
due  notice  to  the  plaintiff  that  the  mail-bag  was  about  to  be 
thrown  upon  the  platform,  or  in  protecting  plaintiff  from  injury 
therefrom.1 

iNye,  J.,  in  Clarke  v.  N.  Y.  P.  &  0.  R.  R.  Co.,  Medina  Co.  Com.  Pleas, 

see   136  Mass.  552,  97  N.  Y.  404. 

Sec.  2229.  Injury  to  person  traveling  on  right  of  way  long 
used  by  public  caused  by  lump  of  coal  fall- 
ing from  car,  producing  unconscious  condi- 
tion, being  struck  by  yard  engine  while  in 
such  condition. 

1.  Company  owes  plaintiff  no  duty  except  I"  refrain  from 

willfully  and  negligently  injuring  him  after  discover 
ing  his  presence  and  peril. 

2.  Duty  upon  discovery  of  peril,  to  exerdzi  ordinary  car, 

to  avoid  injury. 


2020  INSTRUCTIONS   TO   JURY. 

3.  Must  be  something  in  the  appearance  in  the  plaintiff  to 
indicate  that  he  was  helpless  and  in  danger — Otherwise 
it  may  be  assumed  he  will  leave  the  track. 

1.  Company  owed  plaintiff  no  duty  except   to  refrain  from 
willfully  and  negligently  injuring  him  after  discoveriny  his  pres- 
ence and  peril.     It  appears  from  the  undisputed  evidence  in 
this  case  that  at  the  time  when  the  plaintiff  received  his  injury- 
he  was  walking  along  the  right  of  way  of  the  defendant  com- 
pany, and  not  upon  any  public  street  or  highway,  nor  at  any 
intersection  of  any  street  or  highway,  and  the  defendant's  right 
of  way  and  tracks,  but  was  using  the  defendant's  right  of  way 
and  tracks  as  a  convenient  road  to  his  work.     He  was  not  upon 
the  defendant's  right  of  way  by  its  invitation,  either  expressed 
or   implied,   but  solely   for  his   own   convenience,    and   he   was 
therefore  what  is  known  in  law  under  these  conditions  as  a  bare 
licensee.     That  being  true,  the  company  did  not  owe  him  any 
duty  to  exercise  care  for  his  safety,  except  the  duty  to  refrain 
from  willfully  and  negligently  injuring  him  after  discovering 
his  presence  and  peril.     At  all  crossings  of  streets  and  highways, 
and  at  other  places  where  the  public  have  a  right  to  be,  it  is 
made  the  duty  of  the  railway  company  to  exercise  ordinary  care 
for  the  safety  of  persons  who  may  have  occasion  to  go  upon 
and  cross  its  tracks,  and  this  duty  requires  it  to  keep  a  proper 
lookout  ahead  to  discover  their  presence.     The  measure  of  its 
duty  to  persons  under  such  circumstances  is  that  degree  of  care 
and  caution  which  persons  of  ordinary  prudence  and  caution 
are  accustomed  to  use  under  like  circumstances  and  conditions. 
But  when  persons  go  upon  a  railroad  company's  right  of  way 
at  places  where  they  have  no  right  to  go.  the  company  is  not 
required   to   exercise   care  for  their  safety,   except,   as  I  have 
said,   to   refrain    from    injuring  them   willfully   and   wantonly 
after  discovering  their  peril.     Persons  who  go  upon  a  railway 
company's  tracks  at  places  where  they  have  no  right  to  go,  as 
was  the  case  with  the  plaintiff  when  he  used  this  right  of  way 
as  a  convenient  road  to  and  from  his  work,  instead  of  going  by 


RAILROADS — MISCELLANEOUS   CASES   OF   NEGLIGENCE.       2021 

the  public  streets  and  highways  of  the  city,  takes  the  risks  of 
injury,  and  can  not  therefore  recover  if  they  receive  injuries 
on  account  of  the  defendant  not  exercising  care  for  their  safety. 
The  plaintiff  can  only  recover,  as  I  have  already  said,  in  ease 
the  evidence  shows  that  the  agents  and  servants  of  the  defendant 
company  in  charge  of  its  engines  and  trains  willfully  and  wan- 
tonly inflicted  injuries  upon  him  after  discovering  his  presence 
and  peril. 

If,  therefore,  you  believe  the  fact  to  be  that  the  plaintiff  was 
injured,  first,  by  a  lump  of  coal  falling  from  an  overloaded 
coal-car,  even  though  you  may  be  of  the  opinion  that  it  was 
negligence  on  the  part  of  the  defendant  company  to  transport 
loaded  coal  cars  over  its  lines,  yet  the  plaintiff  can  not  recover 
for  that  injury  because  when  he  undertook  to  travel  along  the 
defendant's  right  of  way  by  the  side  of  its  loaded  and  moving 
coal-trains  he  assumed  the  risk  of  injury  from  coal  falling  off 
of  the  cars,  because  the  plaintiff's  own  evidence  shows  that  tins 
was  the  usual  and  ordinary  manner  of  loading  the  coal-cars, 
and  was  therefore  a  known  danger. 

The  plaintiff  claims  that  by  this  blow  upon  the  head  he  was 
rendered  unconscious,  and  that  while  in  this  unconscious  con- 
dition he  was  run  down  by  an  engine  coming  south  and  operated 
by  the  agents  and  servants  of  the  defendant  company  in  a  neg- 
ligent and  careless  manner. 

2.  Duty,  upon  discovery  of  peril,  io  exercise  ordinary  cur,  to 
avoid  injury.  In  determining  whether  or  not  the  defendant 
company  is  liable  to  the  plaintiff  in  damages  for  causing  this 
second  injury,  you  will  still  keep  in  mind  that  the  defendant 
did  not  owe  to  him  the  duty  of  exercising  ordinary  care  for  his 
safety,  but  if  you  find  the  fact  to  be  that  the  defendanl  company, 
through  its  agents  and  servants,  or  any  one  of  them,  engaged 
in  the  operation  of  the  freight  train  or  the  Locomotive,  discos 
ered  the  fact  that  the  plaintiff  was  injured  and  in  a  position 
of  danger,  then  it  became  its  duty  to  exercise  ordinary  care  to 
avoid  injuring  him;  and  it'  it  failed  to  do  so.  and  its  failure 
so  to  do  resulted  in  injury  to  the  plaintiff,  the  defendant   will 


2022  INSTRUCTIONS   TO   JURY. 

be  liable  for  the  injuries  resulting  therefrom.  If  you  find  the 
fact  to  be  that'  some  employee  or  employees  of  the  defendant 
company  engaged  in  the  operation  of  its  freight  train  going 
north,  or  the  engine  coming  south,  had  notice  such  as  a  person 
of  ordinary  prudence  would  believe  and  act  upon,  that  the  plain- 
tiff was  injured,  and  that  he  was  exposed  in  a  helpless  condition 
to  the  danger  of  injury  from  a  passing  locomotive  or  train,  then 
the  company  owed  to  him  the  duty  of  observing  due  care  to 
prevent  his  being  so  injured,  notwithstanding  he  was  upon  its 
tracks  at  a  place  where  he  had  no  right  to  be.  Not  to  do  so 
would  be  to  willfully  and  wantonly  inflict  injury  upon  him. 
It  is,  therefore,  your  duty  to  inquire  whether  or  not  any  em- 
ployee or  employees  of  the  defendant  company  did  have  actual 
notice  that  the  plaintiff  was  injured  and  exposed  to  danger  in 
sufficient  time  that  by  the  exercise  of  due  and  proper  care  the 
plaintiff  could  have  been  saved  from  being  run  over  by  the 
locomotive  coming  from  the  north. 

It  is  the  plaintiff's  claim  that  the  coal-train  from  which  he 
testifies  the  lump  of  coal  fell  and  struck  him  on  the  head  had 
passed  by  him  before  the  locomotive  ran  over  him,  and  that 
someone  was  standing  on  the  rear  of  the  caboose.  It  will  be 
your  duty  to  determine  whether  or  not  that  is  the  case ;  that  is, 
whether  a  coal  train  did  pass  by  him  before  he  received  the 
injury  to  his  leg,  and  if  so.  whether  an  employee  of  the  company 
had  notice  of  his  condition. 

The  defendant  has  introduced  evidence  by  its  chief  train  dis- 
patcher touching  the  number  of  freight  trains  going  north  that 
afternoon  at  about  the  time  of  this  injury.  You  will  look  to 
that  and  all  the  evidence  to  decide  the  question  as  to  whether 
or  not  the  plaintiff  is  correct  or  mistaken  when  he  testifies  that 
the  coal-train  had  entirely  passed  by  him  before  he  was  run 
down  by  the  engine.  Of  course,  if  you  find  that  the  coal  train 
from  which  the  coal  fell  had  not  passed  by  him  when  he  was 
run  down  by  the  locomotive,  then  there  can  be  no  question  of 
an  employee  of  the  defendant  company  on  the  rear  of  the  caboose 
learning  of  the  injury  to  the  plaintiff.     But  if  you  find  that 


RAILROADS MISCELLANEOUS  CASES  OF  NEGLIGENCE.   2023 

there  was  a  coal-train  going  north,  which  had  entirely  passed 
by  before  he  was  run  down  by  the  locomotive,  you  will  inquire 
whether  or  not  anyone  connected  with  the  management  and 
operation  of  that  freight  train  had  notice  of  his  injury,  and  if 
so,  whether  such  notice  was  obtained  in  time  to  have  avoided 
the  second  injury  to  him  by  the  exercise  of  ordinary  care  in 
that  behalf  by  stopping  the  coal  train  or  giving  notice  to  those 
in  charge  of  the  locomotive  which  ran  over  his  legs,  of  the 
plaintiff's  perilous  situation.  Of  course,  any  persons  in  charge 
of  the  coal-train  were  under  no  obligation  to  give  notice  that, 
the  plaintiff  was  walking  along  its  tracks,  unless  they  had  notice 
of  his  injury  and  disabled  condition.  They  had  no  duty  to 
perform  toward  the  plaintiff  unless  you  find  from  the  evidence 
that  some  person  connected  with  the  operation  of  the  coal  train 
had  such  notice  as  a  person  of  ordinary  prudence  would  believe 
and  act  upon  that  the  plaintiff  was  injured  and  in  a  helpless 
condition,  and  exposed  on  account  thereof  to  danger  from  a 
passing  train. 

As  regards  the  engineer  in  charge  of  the  locomotive  coming 
from  the  north,  if  he  discovered  that  the  plaintiff  was  injured, 
that  is,  if  he  had  notice  from  the  appearance  and  conduct  of 
the  plaintiff  such  as  a  person  of  ordinary  prudence  would  be- 
lieve and  act  upon  that  plaintiff  was  injured  and  in  a  helpless 
condition,  or  that  for  any  reason  he  was  in  a  helpless  condition 
and  exposed  to  danger  of  being  run  over,  then  it  became  his 
duty  to  exercise  ordinary  care  to  avoid  injuring  him;  that  is. 
to  use  that  degree  of  care  which  persons  of  ordinary  prudence 
and  caution  are  accustomed  to  exercise  under  like  circumstances 
and  conditions;  and  a  failure  to  exercise  such  care  on  the  pari 
of  the  engineer  would,  if  it  resulted  in  injury  to  the  plaintiff, 
render  the  defendant  company  liable  in  damages  for  whatever 
injuries  were  the  result  of  this  wanl  of  care  on  his  part. 

3.  Must  be  something  in  the  appearance  in  plaintiff  to  indicatt 
to  servants  of  railway  Hint  /"  was  helpless  <ni<l  in  danger  Othi  r 
tvise  it  may  be  assumed  hi  will  leavt  //"  track.  It  is  important 
for  you  to  consider  whether  or  not  there  was  in  the  appearance 


2024  INSTRUCTIONS   TO   JURY 

of  the  plaintiff  at  or  after  this  presence  on  the  track  was  dis- 
covered by  the  engineer  in  charge  of  the  locomotive  which 
struck  him,  anything  to  indicate  to  the  engineer  that  the  plain- 
tiff was  not  in  the  possession  of  his  senses.  If  there  was  nothing 
in  the  conduct  or  appearance  of  the  plaintiff  after  he  was  dis- 
covered by  the  engineer  which  would  lead  a  person  of  ordinary 
condition  of  helplessness,  or  in  a  condition  where  he  was  not 
able  to  care  for  himself,  then  the  engineer  had  a  right  to  pre- 
sume that  the  plaintiff  possessed  ordinary  capacity  to  care  for 
himself,  and  that  he  could  see  and  hear,  and  that  as  a  locomotive 
approached  him  lie  would  leave  the  track,  and  under  such  cir- 
cumstances the  engineer  was  not  bound  to  slacken  the  rate  of 
speed  of  the  locomotive  until  it  became  apparent  to  him  that 
the  plaintiff  was  not  going  to  leave  the  track,  when  it  would 
become  the  duty  of  the  engineer  to  use  due  and  proper  care  to 
stop  his  locomotive  and  avoid  the  injury. 

A  failure  upon  the  part  of  the  engineer  to  use  ordinary  care 
to  stop  after  he  discovered  that  the  plaintiff  was  not  going  to 
leave  the  track,  or  after  starting  to  leave  it  and  was  returning 
to  it,  would  render  the  defendant  company  liable  for  the  injuries 
caused  to  him  by  the  engineer's  failure  to  use  ordinary  care. 
And  what  would  be  ordinary  care  under  such  circumstances  is 
for  the  jury,  and  would  be  that  care  which  ordinarily  prudent 
persons  are  accustomed  to  use  under  like  circumstances. 

But  if  you  find  the  fact  to  be  that  the  engineer  did  use  ordi- 
nary care  under  the  circumstances  to  stop  after  he  discovered 
that  the  plaintiff  was  not  going  to  leave  the  track,  or  was  re- 
turning to  it  after  starting  to  leave  it,  and  could  not  stop  in 
time  to  avoid  the  injury,  then  the  defendant  is  not  liable  for 
the  injury. 

To  entitle  the  plaintiff  to  recover  in  this  case  you  must  find 
from  a  preponderance  of  the  evidence  that  the  plaintiff  was  for 
some  reason  unconscious  of  his  peril,  or  unable  by  reason  of 
an  injury  to  escape  from  it,  and  that  this  condition  was  actu- 
ally known  to  some  one  or  more  of  the  employees  of  the  de- 
fendant  company,   and   that   they   obtained    this   knowledge   in 


RAILROADS — MISCELLANEOUS  CASES  OP  NEGLIGENCE.   2025 

sufficient  time  to  have  enabled  them  to  have  avoided  the  injury 
to  him  by  the  exercise  of  ordinary  care  on  their  part.  The 
defendant  company  was  under  no  obligations  to  fence  its  track 
to  keep  the  public  from  traveling  along  its  right  of  way.  The 
defendant  was  not  bound  to  exercise  ordinary  care  at  this  point 
on  its  tracks,  as  I  have  said  to  you,  for  the  safety  of  persons 
who  may  for  their  own  convenience  be  upon  its  tracks,  and  is 
only  liable  to  the  plaintiff  in  case  you  should  find  that  if  did 
not  use  ordinary  care  for  his  safety  after  discovering  his  peril. 
In  other  words,  any  negligence  of  the  defendant  company  prior 
to  the  discovery  of  the  plaintiff's  peril  will  not  render  the  de- 
fendant company  liable  for  his  injuries.1 

i  Rubel    v.    Hocking   Valley    Ry.     Franklin    county.     Bigger,    J.     Affirmed 
by  circuit  and  supreme  courts. 


CHAPTER   CXXX. 
RAPE,  AND  ASSAULTS  TO  COMMIT. 

SEC.  SKt;- 

2230.  Defined.  2234.  Evidence    as    to    character   of 

2231.  Consent  of  female.  the  woman. 

2232.  Carnal   knowledge  when  com-       2235.  Resistance — Evidence. 

plete.  2236.  Assault  with  intent  to  rape. 

2233.  Capacity — Burden      of     proof       2237.  Same  continued— Force — Con- 

where       accused       under  sent. 

fourteen  years  of  age.  2238.  Same  continued — Declarations 

of  prosecuting  witness. 

Sec.  2230.     Defined. 

[By  statute,  sees.  12413,  12414,  12415.] 

Sec.  2231.     Consent  of  female. 

The  jury  are  instructed  that  before  you  can  find  the  defendant 
guilty,  you  must  be  satisfied  beyond  a  reasonable  doubt  that 
carnal  knowledge  was  had  against  or  without  the  consent  of 
the  female.  Carnal  knowledge  with  consent  is  not  rape,  unless 
the  female  person  is  under  sixteen  years  of  age.  It  is  not 
necessary  that  want  of  consent  be  shown  by  actual  manual  re- 
sistance, but  it  must  be  shown  that  the  consent  be  given  by  the 
female  person  as  a  rational  and  intelligent  person.  If  you  find 
that  the  defendant  had  carnal  knowledge  of  the  female  while 
she  was  so  drunk  as  to  be  unconscious,  it  is  in  law  having  carnal 
knowledge  against  her  consent;  or  if  the  woman  is  insane,  or 
an  imbecile,  or  asleep,  it  is  against  her  consent;  or  if  her  consent 
was  obtained  by  threats  and  fear  of  bodily  harm,  although  there 
is  no  actual  violence,  it  is  against  her  consent.1 

As  the  law  now  stands  it  is  not  material  whether  consent  has 
been  given  by  a  female  under  sixteen  years  or  not,  as  the  statute 
2026 


RAPE,   AND   ASSAULTS   TO    COMMIT.  2027 

makes  it  rape  where  a  male  eighteen  years  of  age  carnally  knows 

and  abuses  a  female  person  under  sixteen  years  of  age,   with 

her  consent.     It  is  now  rape  to  have  intercourse  with  a  female 

under  sixteen  years  with  or  without  her  consent. 

i  Clark's  Cr.  Law,  186-88. 

By  threats,  Miller  v.  People,  42  Mich.  262;   Dickerson  v.  State,  40  X.   K. 

667    (Ind.);   Hawkins  v.  State,   136  Ind.  630;    Monroe  v.  State    71 

Miss.  196. 

Sec.  2232.     Carnal  knowledge  complete,  when. 

The  jury  are  instructed  that  carnal  knowledge  or  sexual  inter- 
course is  complete  upon  proof  of  penetration.1 

The  offense  is  complete  if  there  be  penetration  only  without 
emission  {emissio  seminis),  nor  is  it  necessary  that  penetration 
be  full  and  complete,  but  the  slightest  penetration  of  the  male 
organ  into  the  female  organ  will  constitute  carnal  knowledge 
within  the  meaning  of  the  law.2 

Before  you  can  find  the  defendant  guilty  of  rape,  you  must 
be  satisfied  beyond  a  reasonable  doubt  that  there  was  some 
penetration  of  the  male  organ  of  the  defendant  into  the  female 
organ  of  the  prosecutrix.3 

1  Code,  sec.  13672.     This  section  does  not  enlarge  the  meaning  of  the 

utory  provision  in  relation  to  rape  as  to  include  persona  nc4   before 
amenable,  35  0.  S.  52. 

2  Williams  v.  State,  20  Fla.  777,  5  Am.  Cr.  612.     See  Blackl.urn   r.  State, 

22  O.  S.   102. 
s  Massey  v.  State,  20  S.  W.  758. 

Sec.  2233.     Capacity — Burden  of  proof  when  accused  under 
fourteen  years  of  age. 

"If  it  be  found  that  the  accused  had  sexual  intercourse  with 
the  child,  in  the  manner  stated  in  the  indictment,  bnt  that  he 
was,  at  the  time,  under  fourteen  years  of  a'_re.  the  burden  was 
on  the  state  to  show  that  he  was  capable  of  emitting  semen  ;   ami 

the  weight  which  should  he  given  to  the  evidei tending  to 

prove  or  disprove  such  capacity,  is  for  the  consideration  of  the 
jury."1 


2028  INSTRUCTIONS   TO    JURY. 

It  is  left  entirely  for  the  jury  to  say  from  the  evidence  whether 
or  not  the  defendant  was  matured  sufficiently  and  had  the 
physical  capacity  to  commit  the  act.  If  you  find  that  the  de- 
fendant was  under  fourteen  years  of  age,  the  law  presumes  him 
incapahle  of  committing  rape;  you  are  instructed  that  you  can 
not  convict  him  unless  it  is  proven  beyond  a  reasonable  doubt 
that  he  has  arrived  at  the  age  of  puberty,  and  is  capable  of 
emission  and  consummating  the  crime.2 

iFrom  Hiltabiddle  r.  The  State,  35  0.  S.  52.  The  charge  above  given 
is  not  taken  from  the  charge  of  the  lower  court,  but  was  suggested 
by  the  supreme  court  as  being  the  proper  instruction  to  the  jury 
under   the   circumstances. 

-Williams  v.  State,  14  O.  227.  8.  The  statute.  7297,  does  not  change 
this,  35  O.  S.  52;  Wagoner  v.  State,  2  Lea,  352;  Gordon  v.  State. 
93  Ga.  531. 

Sec.  2234.     Evidence  as  to  the  character  of  the  woman. 

Evidence  has  been  admitted  reflecting  upon  the  character  of 
the  woman,  and  the  purpose  of  the  law  in  admitting  such  testi- 
mony should  be  explained  to  you.  You  are  instructed  as  mat- 
ter of  law  that  the  character  of  the  woman,  granting  that  she 
is  a  lewd  woman,  is  no  defense  to  the  charge,  as  rape  may  be 
committed  against  a  prostitute  as  well  as  against  a  virtuous 
female.1  You  are  permitted  to  look  to  the  testimony  as  to  the 
character  of  the  woman  only  as  a  mere  circumstance  in  the  case, 
for  the  purpose  of  assisting  you  in  determining  whether  she  has 
told  the  truth  about  the  matter,  and  as  reflecting  upon  the 
question  whether  or  not  the  intercourse  was  voluntary  on  her 
part,  or  without  her  consent.  You  must  consider  this  evidence 
with  all  the  other  proof  offered  in  the  case.2 

i  Anderson  v.  State,  104  Ind.  467. 

2  People  v.  Crego,  70  Mich.  319;  Carney  r.  State,  118  Ind.  525;  State  v. 
Reed,  39  Vt.  417;  Pefferling  v.  State,  50  Tex.  486. 

Sec.  2235.     Resistance — Evidence. 

You  are  instructed  that  the  want  of  consent  and  actual  pene- 
tration are  both  essential  to  the  crime  of  rape,  and  you  must 
he  satisfied  beyond  a  reasonable  doubt  that  there  was  both  want 


RAPE,   AND   ASSAULTS   TO    COMMIT.  2029 

of  consent  and  actual  penetration  before  the  defendant  can  be 
found  guilty  of  the  charge.  The  prosecutrix  is  bound  to  resist, 
unless  manual  resistance  be  overcome  by  fear  or  threats.  The 
want  of  consent  may  be  shown  by  the  testimony  of  the  prose- 
cutrix, but  this  alone  without  some  corroboration  is  not  sufficient  ; 
it  must  appear  that  she  made  some  resistance,  and  her  testimony 
may  be  corroborated  by  her  subsequent  conduct,  excitement,  the 
condition  of  her  clothes,  whether  torn,  outcries,  medical  testi- 
mony as  to  the  condition  of  the  hymen.1 

i  People  v.  Terwillinger,  26  N.  Y.  S.  674;  Richards  r.  State,  36  Neb.  17: 
People  v.  Kunz,  27  N.  Y.  S.  945;  State  v.  Connelly.  59  X.  \\  .  499; 
Richards  v.  State,  53  N.  W.  1027.  Walking  together  not  sufficient 
State  v.  Chapman.  55  N.  W.  489  (la.).  Fear  of  disclosing  may 
render  corroboration  unnecessary,  111  Mo.  56!).  In  People  v.  Wea- 
sel, 33  Pac.  216  (Cal.),  the  jury  were  charged  "while  it  is  the  law 
that  the  testimony  of  the  prosecutrix  should  be  scanned,  still 
this  does  not  mean  that  such  evidence  is  never  sufficient  to  convict, 
and  if  you  believe  the  prosecutrix  it  is  your  duty  to  render  a 
verdict   accordingly." 

The  jury  may  properly  be  charged  that  if  they  believe  that,  at  the  time 
of  the  alleged  rape,  the  prosecuting  witness  made  no  outcry,  and 
did  not  complain  to  others,  but  concealed  the  fact  for  a  con- 
siderable length  of  time,  that  they  may  take  this  into  account  in 
determining  whether  a  rape  was  in  fact  committed  or  not.  Ter 
ritory  v.  Edie,  30  Pac.  851. 

If  the  jury  believe  that  the  defendant  had  sexual  intercourse  "itli  the 
prosecutrix,  and  she  did  not  make  the  utmost  resistance  to  prevent 
it,  still  the  defendant  may  be  found  guilty  provided  the  jury  be- 
lieve that  the  defendant  threatened  to  use  force  and  do  lur  great 
bodily  injury  in  case  she  did  not  submit  through  fear  of  BUCh 
injury.     Id.     30  Pac.  851. 

Sec.  2236.     Assault  with  intent  to  commit  rape. 

The  statute  of  Ohio  provides  that  "whoever  has  carnal  knowl- 
edge of  a  female  person  forcibly  and  against  her  will  is  guilty 
of  rape."  Rape  is  defined  to  be  the  unlawful  carnal  knowledge 
of  a  woman  by  force  and  against  her  will.  There  are  three 
things,  then,  necessary  to  constitute  the  offense  of  rape.  1. 
There  7iiust  be  carnal  knowledge  of  a  female  person.  2.  The 
act  must  be  done  forcibly.  3.  It  musl  be  done  against  the  will 
of  the  female  person. 


2030  INSTRUCTIONS   TO   JURY. 

If  you  find,  then,  from  the  evidence  that  the  defendant  com- 
mitted an  assault  upon  the  person  of  the  said  L.,  it  will  become 
necessary  for  you  to  determine  with  what  intent  he  committed 
said  assault.  Did  said  defendant  commit  said  assault  with 
intent  to  have  sexual  intercourse  with  said  L.,  forcibly  and 
against  her  will  ?  And  before  the  state  would  be  entitled  to  a 
verdict  of  guilty  against  the  defendant  for  the  crime  of  assault 
with  intent  to  commit  rape,  you  must  further  find  from  the 
evidence  that  at  the  time  he  so  assaulted  the  said  L.,  he  intended 
to  have  sexual  intercourse  with  her  forcibly  and  against  her 
will.  It  is  not  necessary,  to  constitute  the  crime  of  assault  with 
intent  to  commit  a  rape,  that  the  defendant  should  have  actually 
had  sexual  intercourse  with  the  prosecuting  witness  L.  The 
offense  is  complete  under  our  statute  if  the  defendant  assaulted 
her  with  the  intent  to  have  sexual  intercourse  with  her  forcibly 
and  against  her  will.1 

i  Nye,  J.,  in  State  v.  Hughs,  Lorain  Co.  Com.  Pleas. 

To  constitute  an  assault  with  intent  to  commit  a  rape,  the  man's  purpose 
must  be  to  use  force,  should  it  be  necessary,  to  overcome  the 
woman's  will.  Bishop's  Cr.  Law.  It  is  not  enough  merely  to 
solicit  her,  however  urgently,  to  consent  to  a  carnal  connection. 
Ibid. 

Sec.  2237.     Same,  continued — Force — Consent,  etc. 

The  allegation  of  force,  in  the  absence  of  previous  consent,  is 
proved  by  any  competent  evidence,  showing  that  either  the  per- 
son of  the  woman  was  violated,  and  her  resistance  overcome  by 
physical  force  or  that  her  will  was  overcome  by  fear  or  by 
duress.  In  either  case  the  crime  would  be  complete,  though 
she  ceased  all  resistance  before  the  act  itself  was  actually  con- 
summated. Where  a  female  submits  to  sexual  intercourse 
through  fear  of  personal  violence,  and  to  avoid  the  infliction 
of  great  personal  injury  upon  herself,  then  such  carnal  inter- 
course would  not  be  with  such  consent  as  would  justify  the  act 
upon  the  part  of  the  man  accused. 

To  sustain  a  conviction  upon  an  indictment  for  assault  with 
intent  to  commit  rape,  the  testimony  must  show  not  only  that 


RAPE,   AND   ASSAULTS   TO    COMMIT.  2031 

the  accused  had  a  purpose  at  the  time  of  the  assault  to  have 
sexual  intercourse  with  the  prosecuting  witness,  bu1  also  that 
he  intended  to  use  whatever  degree  of  force  might  be  accessary 
to  enable  him  to  overcome  her  resistance,  and  accomplish  his 
purpose. 

You  are  instructed  that  if  the  defendant  made  an  approach 
towards  the  prosecuting  witness  with  intent  to  procure  her  eon- 
sent  to  have  sexual  intercourse  with  her,  and  it'  she  refused,  he 
abandoned  the  purpose,  such  act  would  not  constitute  an  assault 
with  intent  to  commit  a  rape.  But  if  you  find  from  the  evi- 
dence that  the  defendant  made  an  assault  upon  the  prosecuting 
witness  with  intent  to  use  such  physical  force  and  threats  as 
would  overcome  her  will  and  compel  her  to  submit  to  his  desires 
to  have  sexual  intercourse  with  him,  such  act  would  constitute 
an  assault  with  intent  to  commit  a  rape.1 

i  Nye,  J.,  in  State  v.  Hughs,  Lorain  Co.  Com.  Pleas. 

For  definition  of  attempt,  see  Bishop's  Criminal  Law,  sees.  72s.  ,t  tea. 
If  after  an  assault  with  intent  to  ravish,  the  woman  who  had  re- 
sisted yields  voluntarily,  so  that  there  is  no  rape,  the  offense  of 
assault  with  intent  to  commit  rape  remains,   12  la.  66,  50   [a.    Is'1 

Sec.  2238.     Same,     continued — Declarations     of     prosecuting 
witness. 

Testimony  has  been  offered  by  the  state  and  permitted  to  he 
given  to  you  of  the  declarations  made  by  L.,  the  prosecuting 
witness,  to  her  aunt,  and  to  her  mother  soon  after  the  alleged 
offense.  In  a  case  of  this  kind  the  declaration  of  the  injured 
female  made  immediately  or  soon  after  the  alleged  offense,  are 
competent  testimony,  provided  the  female  has  first  hern  exam 
ined  in  court.  They  are  competent  not  for  the  purpose  of 
proving  the  commission  of  the  offense,  but  as  corroborative  of 
or  contradictory  to  her  statement  made  in  court.' 

i  Nye,  J.,  in  State  v.  Hughs,  Lorain  Co.   (Ohio)    Com.   Pleat. 
This   instruction    is   based   on  Johnson   v.   State,    17   Ohio,   603;    Laughlin 
v.  State,  18  Ohio,  !•!». 


CHAPTER   CXXXI. 
REPLEVIN. 


SEC.  SEC. 

2239.  Short  general  instruction. 

2240.  Replevin  of   property  of  wife 

seized    on    execution 

against  husband.  3. 

1.  Statement  of  claims. 

2.  Ownership      first      to      be 

determined. 

3.  Value  of  property. 

4.  Damages — If     finding     for 

plaint  ill'. 

5.  Damages — If     finding     for 

defendant. 

2241.  Conclusion    of    charge    in    re- 

plevin—  (1)    When     bond  4. 

given  by  plaint  iff.  (2) 
And  when  bond  given  by 
defendant. 

2242.  Replevin    of    annual    products 

of  the  earth.  5. 

2243.  Growing   fruit — Whether   per- 

sonalty under  any  cir- 
cumstances. 

2244.  Replevin      of      property       by 

vendor    when     purchaser 

insolvent     and     did     not  6 

intend  to  pay   for  them. 

2245.  Effect  of  mortgage  given  upon 

goods  fraudulently 
bought. 

2246.  Chattel  mortgagee  may  prose- 

cute action  for  replevin, 
when  mortgage   attacked  7 

as  fraudulent. 
2246a.  Replevin     of    hogs    by    wife 
from    purchaser    on    exe- 
cution   against    husband. 

1.  Statement  of  claims.  8 

2.  Burden      of      proof      and 

weight  of  evidence  — 
Testimony    and   evidence 

S 
2032 


distinguished  —  Credibil- 
ity of  witnesses — Ulti- 
mate facts. 
Wife  claiming  stock  on 
farm  of  husband  must 
rebut  presumption  of 
ownership  by  husband 
arising  from  possession 
and  apparent  ownership 
— She  must  show  that 
she  has  separate  prop- 
erty, or  receipt  of  money 
during  coverture. 
Wife  entitled  to  increase 
of  her  stock  though 
raised  on  husband's  farm 
— Not  subject  to  levy  by 
creditor  of  husband. 
Wife  estopped  by  conduct 
from  claiming  ownership 
as  against  persons  deal- 
ing with  husband  on 
faith  of  his  apparent 
ownership. 

.  Wife  estopped  by  fraud- 
ulent purpose  and  con- 
duct of  husband  to  avoid 
execution  against  his 
property  if  she  has 
knowledge  and  partici- 
pates therein. 

.  Creditor  of  husband  must 
have  knowledge  of  and 
rely  upon  apparent  pos- 
session and  ownership  by 
husband. 

.  Wife  must  act  with  dili- 
gence in  asserting  her 
rights  when  creditor  of 
husband  levies  execution. 

.  Alternative   verdicts. 


REPLEVIN.  2033 

Sec.  2239.     Short  general  instruction. 

The  plaintiff,  having  alleged  that  he  has  the  right  of  property 
and  of  possession,  or  had  that  right  on  the  date  this  suit  was 
commenced,  has  the  affirmative  of  the  issue;  and  therefore  the 
burden  is  upon  the  plaintiff  to  establish  by  a  preponderance 
of  the  evidence  that  he  is  entitled  to  the  right  of  property  or 
of  possession  in  the  chattels  described,  and  that  the  defendanl 
at  the  time  of  the  commencement  of  this  action  wrongfully 
detained  the  property  from  him. 

By  a  preponderance  of  the  evidence  is  meant  the  greater 
weight  of  the  evidence.  Therefore,  before  the  plaintiff  can 
recover  the  greater  weight  of  the  evidence  must  be  on  the  affirm- 
ative— on  the  side  of  the  affirmative  of  this  proposition;  thai 
the  plaintiff  at  the  commencement  of  this  action  had  the  righl 
of  property  or  of  possession  in  the  chattels  described,  and  thai 
the  defendant  wrongfully  withheld  possession  from  him.  [f 
you  find  such  a  preponderance  in  favor  of  the  plaintiff,  it  will 
be  your  duty  to  find  for  the  plaintiff.  But  if  you  find  thai  the 
evidence  on  the  proposition  is  evenly  balanced,  or  preponder- 
ates in  favor  of  the  defendant,  it  will  be  your  duty  to  render 
a  verdict  for  the  defendant. 

You  will  therefore  determine  from  the  evidence  in  this  case 
who  had  the  right  of  property  at  the  beginning  of  this  action, 
and  of  possession,  or  either.  If  you  find  that  the  plaintiff  had 
the  right  of  property  and  possession,  or  either,  your  verdict 
will  be  for  him.  But  if  you  find  that  he  neither  had  tin-  righl 
of  property  nor  possession,  your  verdict  will  be  for  the  de- 
fendant. 

As  I  have  heretofore  said,  if  you  find  thai  the  plaintiff  was 
not  entitled  to  the  possession  of  the  property  in  question,  then 
it  will  be  your  duty  to  find  thai  the  righl  of  possession  was  in 
the  defendant;  and  if  yon  find  in  favor  of  the  plaintiff  in  the 
case,  then  you  will  determine  if  the  righl  of  property  or  posses 
sion  was  in  the  plaintiff  at  the  commencemenl  of  the  action,  and 
you   will   also   assess   damages   for  the   plaintiff.     Mo   damages 

having  been  proved,  you  will  assess  one  cent  as  nominal  damages. 


2034  INSTRUCTIONS   TO    JURY. 

If  you  find  for  the  defendant  you  will  find  the  right  of  pos- 
session in  the  defendant,  and  you  will  also  find  the  value  of  the 
property,  and  also  find  the  damages  for  the  detention.  No  dam- 
ages having  been  proved,  you  will  find  one  cent  as  the  damages. 
The  value  of  the  property  has  been  testified  to  here,  and  is 

undisputed  as  $ ;    so  that  you  will  insert,  that  value  in 

your  verdict  in  case  you  find  for  the  defendant,  together  with 

the  one  cent  damages.1 

J  Pennell  v.  Adams,  Court  of  Com.  Pleas,   Franklin   Co.,  0.     Rogers,  J. 

Sec.  2240.     Replevin  of  property  of  wife  seized  on  execution 
against  husband. 

1.  Statement  of  claims. 

2.  Ownership  first  to  be  determined. 

3.  Value  of  property. 

4.  Damages — If  finding  for  plaintiff. 

5.  Damages — 7/  finding  for  defendant. 

1.  Statement  of  claims.  Gentlemen  of  the  jury,  this  is  an 
action  in  replevin.  The  plaintiff  by  this  proceeding  seeks  to 
recover  possession  of  certain  property  seized  by  the  defendant 
under  an  execution  issued  at  the  instance  of  the  defendant 
against  her  husband.  She  claims  the  right  to  the  property 
upon  the  ground  that  she  is  the  owner  of  the  property.  The 
claim  of  the  defendant  is  that  the  property  does  not  belong  to 
the  plaintiff. 

2.  Ownership  to  be  first  determined.  Your  first  inquiry, 
therefore,  will  be  as  to  the  ownership  of  this  property.  If  the 
plaintiff  is  the  owner  of  this  property  then  the  defendant  could 
not  legally  seize  it  upon  execution  to  satisfy  a  claim  against 
her  husband,  and  you  should  find  by  your  verdict  that  she  is 
entitled  to  the  possession  of  the  property. 

3.  Value  of  property.  If  you  find  that  the  plaintiff  is  the 
owner  of  this  property,  you  will  next  proceed  to  determine  the 
value  of  the  property.  In  so  doing  it  will  be  your  duty  to 
determine  from  the  evidence  the  market  value  of  the  property 


REPLEVIN.  2035 

as  it  stood  at  the  time  it  was  taken.  The  rule  is,  what  was  the 
market  value  of  those  goods  at  that  time  and  place.  That  is 
what  it  would  have  cost  the  plaintiff  to  have  replaced  them  with 
other  goods  of  the  same  kind  and  quality.  The  value  may  be 
arrived  at  by  deducting  from  the  market  value  of  new  goods 
a  reasonable  sum  for  the  depreciation  in  value  resulting  from 
the  wear  and  use  of  the  goods.  Upon  this  question  certain  wit- 
nesses have  given  their  opinions  as  to  its  value.  The  purpose 
of  this  testimony  is  to  aid  you  in  arriving  at  a  correct  conclu- 
sion as  to  its  values. 

4.  Damages—If  finding  for  plaintiff.  You  will  also,  if  you 
find  for  the  plaintiff,  fix  the  damages  sustained  by  her  by  reason 
of  the  unlawful  taking  and  detention  of  her  property.  In  doing 
so,  you  may  take  into  consideration  the  effect  of  the  taking  upon 
her  business.  This  does  not  mean  that  you  shall  speculate  upon 
the  amount  of  profit  which  it  might  seem  probable  she  could 
have  realized  from  the  conduct  of  her  business,  bul  you  may 
allow  such  sum  as  in  your  judgment  would  be  the  reasonable 
value  of  the  use  of  such  property  to  the  plaintiff  in  the  business 
in  which  she  was  engaged  for  the  period  of  time  she  has  been 
deprived  of  its  use  by  virtue  of  its  taking  by  the  defendant 
under  the  bond  in  this  case. 

If  you  find  for  the  plaintiff,  in  fixing  the  value  of  the  property 
taken,  you  will  deduct  from  the  total  value  of  all  the  property 
taken  the  value  of  such  portions  of  it  as  you  find  was  returned 
to  the  original  owner  or  owners  upon  the  order  of  the  plaintiff 
in  this  case,  if  you  find  as  a  matter  of  fact  th.it  any  of  the  prop 
erty  was  so  returned. 

If  you  find  for  the  plaintiff  you  will  assess  the  value  of  the 
property  taken  and  the  dameges  for  its  taking  and  detention 
separately. 

5.  Damages — If  finding  for  defendant.  If  you  find  t'<>r  the 
defendant,  he  will  be  entitled  to  recover  the  damages  |h.  baa 
sustained  by  reason  of  the  unlawful  taking  and  detention  of  the 
property  by  the  plaintiff  in  replevin  from  the  officer.  That  is. 
you  will  allow  him  as  damages  such  sum  as  in  your  judgment 


2036  INSTRUCTIONS   TO   JURY. 

will  compensate  him  for  the  loss  sustained  by  him  in  being 
deprived  of  the  property  for  the  time  it  was  held  by  the  officer, 
who  took  it  under  the  writ  of  replevin  from  the  officer  who  held 
it  under  the  writ  of  execution ;  that  is,  for  the  time  which  inter- 
vened between  the  taking  in  replevin  and  the  return  to  the 
officer  under  the  counterbond. 

If  you  find  for  the  defendant  he  will  be  entitled  to  nominal 
damages  for  the  unlawful  seizure  and  whatever  actual  damages, 
if  any,  the  evidence  will  show  he  has  sustained.  By  nominal 
damages  I  mean  one  cent,  or  five  cents  or  some  trivial  sum. 

If  you  find  for  the  defendant  you  need  not  assess  the  value 

of  the  property.1 

i  Gordon    v.   Logan,   Constable,   etc.,   et   al.,    Com.    Pleas   Court,    Franklin 
Co.,  O.     Bigger,  J. 

Sec.  2241.     Conclusion  of  charge  in  replevin. 

1.  When  bond  given  by  plaintiff. 

2.  When  bond  given  by  defendant. 

1.  When  bond  given  by  plaintiff.  The  plaintiff  having  given 
a  bond  in  replevin  for  the  property  pursuant  to  statute,  the 
property  has  been  delivered  to  him.      Hence,  if  the  jury  find 

that  the  plaintiff  is  the  owner  of  said  property  (or  has  an 
interest  therein)  and  is  entitled  to  the  possession  thereof,  the 
jury  shall  determine  and  assess  adequate  damages  to  the  plain- 
tiff for  the  illegal  detention  of  said  property.  But,  if  the 
jury  find  for  the  defendant,  the  jury  shall  find  whether  the 
defendant  had  the  right  of  property,  or  the  right  of  possession 
only  to  said  property,  at  the  commencement  of  the  suit;  and 
if  the  jury  find  either  the  right  of  property  or  of  possession 
in  the  defendant's  favor,  the  jury  shall  assess  the  value  of 
such  property,  or  of  his  interest  therein  as  the  ease  may  be, 
and  shall  also  assess  to  the  defendant  such  damages  as  they 
think  are  proper  for  the  taking,  detention,  and  injury  to  said 
property.     (See  G.  C,  sec.  12056.) 

2.  When  bond  given  by  defendant.  In  the  replevin  proceed- 
ing the   defendant   has   given   bond   for  the   property,   and  the 


REPLEVIN.  2037 

said  property  has  been  returned  to  the  defendant  after  it  was 
replevined  by  the  sheriff.  Hence,  if  the  jury  find  that  the 
plaintiff  is  the  owner  of  said  property  (or  lias  an  interesl 
therein)  and  is  entitled  to  the  possession  of  said  property,  the 
jury  shall  find  and  assess  the  value  of  said  property  (or  of 
plaintiff's  interest  therein)  and  shall  also  assess  adequate  dam- 
ages to  the  plaintiff  for  the  illegal  detention  of  said  properly. 
But,  if  the  jury  find  for  the  defendant,  the  jury  shall  also  find 
whether  the  defendant  had  the  right  of  property,  or  the  right 
of  possession  only  to  said  property,  at  the  commencement  of 
the  suit,  and  if  the  jury  find  either  in  the  defendant's  favor, 
the  jury  shall  assess  to  the  defendant  such  damages  as  they 
think  are  proper  for  the  taking,  detention  and  injury  to  said 
property. 

Sec.  2242.     Replevin — Annual  products  of  the  earth. 

Those  products  of  the  earth  which  are  annual,  and  are  raised 
by  yearly  manurance  and  labor,  and  essentially  owe  their  annual 
existence  to  the  cultivation  by  man,  termed  "emblements"  and 
sometimes  "fructus  industriales,"  while  still  annexe. 1  to  the 
soil,  are  treated  as  chattels,  with  the  usual  incidents  thereof  and 
are  subject  to  replevin.1 
i  Sparrow  v.  Pond,  49  Minn.  412,  16  L.  R.  A.  103,  32  Am.  St.  571. 

Sec.  2243.     Growing  fruit — Whether  personalty  under  any  cir- 
cumstances. 

Crops  of  fruit  growing  on  trees,  whether  regarded  as  fructus 
naturales  [natural  fruits]  or  fructus  industriales  [fruita  of 
industry]  are  in  general  parts  of  the  realty,  and  unless 
reserved  go  with  the  realty  in  its  transfer.3  [f  the  purpose  of 
planting  is  not  permanent  enhancement  "I'  Hie  land  itself,  hut 
merely  to  secure  a  single  crop,  which  is  to  he  the  s<.lr  return 
for  the  labor  expended,  the  product  naturally  falls  under  the 
head  of  emblements,  and  is  personal  property.8 

But  by  the  acts  and  intention  of  an  owner  of  land  containing 
bearing  fruit  trees  and  growing  fruit    may   be  converted    into 


2038  INSTRUCTIONS   TO   JURY. 

personalty,  and  be  treated  as  such  by  parties  in  their  contrac- 
tual relations.  Where,  therefore,  an  entire  crop  of  growing 
[oranges]  is  sold  by  the  owner  of  the  land  and  the  purchaser 
has  the  right  to  take  them  from  the  trees,  they  may  be  regarded 
as  personal  chattels,  and  an  unlawful  detention  of  the  possession 
may  be  adequately  remedied  by  replevin.3 

i  Simmons   r.   Williford,   60   Fla.   359,   53   So.   452.     Am.   Ann.   Cas.    1912, 
C.    p.   735. 

2  Sparrow  v.  Pond,  4!)  Minn.  412,  16  L.  R.  A.  103,  32  Am.  St.  571. 

3  Simmons    v.    Williford,    supra,    and    note    for    other    cases.     Purner    v. 

Piercy,  40  Md.  212,  17  Am.  Rep.  591  (Peaches);  State  v.  Fowler, 
88  Md.  601,  42  L.  R.  A.  849,  71  Am.  St.  452  (Peaches)  ;  Smock 
v.  Smock,  37  Mo.  App.  56  (Apples,  etc.);  Doty  v.  R.  R.  Co.,  136 
Mo.   App.   254    (Apples).     See    77   Gal.    239. 

Sec.  2244.     Replevin  of  property  by  vendor  when  vendee  was 
insolvent  and  did  not  intend  to  pay  for  same. 

The  questions  for  your  consideration  and  determination  are : 
1.  "Was  plaintiff  at  the  time  of  the  commencement  of  this  action 
the  owner  of,  and  entitled  to  the  possession  of  the  property 
described  in  the  petition  or  any  part  thereof?  2.  What  was  the 
value  of  said  property  at  the  time  of  the  commencement  of  this 
action?  .'?.  Did  the  defendant,  II.,  assignee,  unlawfully  detain 
from  plaintiff  the  possession  of  said  property  or  any  part  of  it  ? 
4.  If  he  did  so  unlawfully  detain  said  property,  how  much,  if 
anything,  were  the  plaintiff's  damages  by  reason  of  such  un- 
lawful detention? 

In  determining  the  questions  in  this  case  it  is  important  for 
you  to  consider  the  financial  condition  of  W.  at  the  time  of  the 
giving  of  the  order  to  the  plaintiffs  in  this  case,  for  the  shipment 
of  the  goods  and  his  financial  condition  at  the  time  of  the  ship- 
ping and  receipt  of  the  goods.  *  *  *  ITis  financial  condition 
before  and  after  the  date  of  the  orders  and  the  shipment  of  the 
goods  is  not  conclusive  as  to  his  financial  condition  at  the  time 
of  giving  the  order  before  shipping  the  goods,  but  evidence  upon 
that  point  may  be  considered  for  the  purpose  of  determining 
his  condition  at  the  time  of  giving  the  order,  and  at  the  time  of 
the  shipping  and  the  receipt  of  the  goods. 


REPLEVIN.  2039 

If  you  find  from  the  evidence  that  W.  at  the  time  of  giving 
the  order  for  the  goods  that  were  shipped  and  received  on  and 

after  ,  19 — ,  had  sufficient  property  to  pay  all  his  debts 

in  full,  then  there  would  be  no  fraud  in  ordering  or  purchasing 
other  goods.  But  if  you  find  that  he  had  not  sufficient  property 
to  pay  all  of  his  debts  in  full,  then  it  will  be  important  for  you 
to  consider  and  determine  whether  he  was  able  to  pay  his  debts 
and  liabilities  as  they  matured  or  became  payable.  Again,  was 
"W.  in  such  a  financial  condition  as  to  be  able  to  pay,  or  have 
a  reasonable  expectation  that  he  could  pay  for  the  goods  pur- 
chased of  the  plaintiffs  on  or  after ,  19 — ,  when  the  hills 

therefor  became  due  and  payable? 

You  are  instructed,  as  matter  of  law,  that  the  intention  on 
the  part  of  the  purchaser  of  goods  not  to  pay  for  them,  existing 
at  the  time  of  purchase  and  concealed  from  the  vendor,  is  such 
fraud  as  will  vitiate  the  contract. 

But  on  the  other  hand,  where  no  such  fraudulent  intent  exists, 
the  mere  fact  that  the  purchaser  has  knowledge  that  his  debts 
exceed  his  assets,  though  the  fact  be  unknown  and  undisclosed 
to  the  vendor,  will  not  vitiate  the  purchase.1 

Therefore,  a  contract  of  purchase  where  the  purchaser  tails 
to  disclose  his  known  insolvency,  whether  it  is  fraudulent  or 
not,  depends  on  the  intention  of  the  purchaser,  and  whether 
that  intention  was  to  pay  or  not  is  a  question  of  fact  for  the 
jury  to  determine.  While  it  may  be  said  that  fraud  must  he 
proved,  and  will  not  be  presumed,  there  is  a  presumption  that 
every  reasonable  person  anticipates  and  intends  the  ordinary 
and  probable  consequences  of  known  causes  and  conditions, 
Hence,  if  the  purchaser  of  goods  has  knowledge  of  his  own 
insolvency,  and  of  his  inability  to  pay  for  them,  his  intention 
not  to  pay  may  he  presumed.  An  insolvent  purchaser  without 
reasonable  expectation  of  ability  to  pay  may  he  presumed  to 
intend  not  to  pay. 

In  determining  the  question  as  to  whether  or  not  the  Baid  W. 
had  a  reasonable  expectation  of  his  ability  in  pay  I'm-  the  goodi 
when  they  became  due  and  payable,  it  would  be  proper  for  you 


2040  INSTRUCTIONS   TO   JURY. 

to  consider  whether  a  man  of  ordinary  business  ability,  situated 
as  he  was,  could  have  reasonably  expected  to  meet  the  obliga- 
tions as  they  became  due.  It  would  be  proper  for  you  to  con- 
sider whether  the  said  "W.  on  and  after  ,  19 — ,  at  the 

time  of  ordering  and  receiving  said  goods,  honestly  believed 
and  expected,  and  from  his  financial  condition  had  reasonable 
grounds  for  believing  that  he  could  pay  for  the  bills  as  they 
became  due  and  payable.  The  said  W.  was  permitted  to  testify 
as  to  what  his  intentions  were  when  he  gave  the  order.  This 
evidence  was  permitted  to  be  given  to  you  for  your  considera- 
tion in  determining  what  his  real  intentions  were,  but  it  is  not 
conclusive ;  you  should  consider  it  in  connection  with  all  the 
other  evidence,  and  from  it  all  say  whether  the  said  W.  at  the 
time  he  gave  the  order  intended  to  pay  for  the  goods,  or  had  a 
reasonable  expectation  of  being  able  to  pay  for  them.2 

i  "A  contract  for  the  purchase  of  goods  on  credit,  made  with  the  intent 
on  the  part  of  the  purchaser  not  to  pay  for  them,  is  fraudulent; 
and  if  the  purchaser  has  no  reasonable  expectation  of  being  able 
to  pay,  it  is  equivalent  to  an  intention  not  to  pay.  But  where 
the  purchaser  intends  to  pay  and  lias  reasonable  expectations  of 
being  able  to  do  so.  the  contract  is  not  fraudulent,  although  the 
purchaser  knows  himself  to  be  insolvent  and  does  not  disclose  it 
to  the  vendor,  who  is  ignorant  of  the  fact."  Talcott  v.  Henderson, 
.31   0.  S.   162;   Wilmot  v.  Lyon,  49  O.  S.  206. 

-  Nye,  .1..  in  Childs,  Groof  &  Co.  v.  Harvey  Musser,  Summit  Co.  Com. 
Pleas. 

Sec.  2245.     Effect  of  mortgage  given  upon  goods  fraudulently 
bought. 

"Where  a  person  fraudujently  purchases  goods  and  executes 
and  delivers  to  a  third  person  a  chattel  mortgage  upon  the 
property  which  he  so  acquires,  the  sole  and  only  consideration 
of  which  mortgage  is  a  debt  then  existing,  and  that  no  new 
consideration  was  paid  at  the  time  of  the  execution  of  said 
mortgage,  .such  pre-existing  debt  is  not  such  consideration  as 
would  constitute  such  mortgagee  a  bona  fide  purchaser  of  said 
goods.  If  the  only  consideration  for  the  making  of  such  mort- 
gage was  a  pre-existing  debt,  then  such  mortgagee  would  acquire 


REPLEVIN.  2041 

no  greater  title  and  right  in  the  property  so  procured  by  fraud 

than  would  a  fraudulent  purchaser.1 

i  Modeled  from  charge  given  by  Nye,  J.,  in  Childs,  Groof  &   Co.   v.  Musser. 

Sec.  2246.  Chattel  mortgagee  may  prosecute  action  for  re- 
plevin— When  mortgage  attacked  as  fraudu- 
lent. 

You  are  instructed  that  as  matter  of  law  "where  a  mortgagor 
of  personal  property  by  the  terms  of  the  mortgage  retains  the 
possession  of  the  property  until  the  condition  is  broken,  bu1 
with  the  express  stipulation  that  if  the  mortgagor  should  com- 
mit any  waste  or  nuisance,  or  attempts  to  secrete  or  remove  the 
property,  the  mortgagee  should  be  authorized  to  take  immediate 
possession  thereof;  and  before  the  condition  broken,  executions 
were  levied  upon  the  property  at  the  suit  of  other  creditors  of 
the  mortgagor  under  which  said  officer  was  about  to  remove 
said  property  from  the  possession  of  the  mortgagor  and  sell 
the  same  to  pay  said  executions,  the  mortgagee  might  obtain 
replevin  for  the  recovery  of  >said  personal  property."'  Apply- 
ing these  principles  to  this  case,  if  you  find  that  the  plaintiff 
loaned  to  the  said  B.  the  sum  of  $ —  — .  and  to  secure  the 
payment  thereof  the  said  B.  executed  and  delivered  to  tin- 
plaintiff  in  good  faith  a  chattel  mortgage  on  the  said  property 
in  order  to  secure  said  money,  and  that  the  said  mortgage  bad 
been  filed  and  refiled  in  accordance  with  the  law,  so  as  to  create 
said  mortgage  a  valid  lien  upon  said  property  at  the  time  of 
the  commencement  of  this  action;  and  you  further  find  by  the 
terms  of  said  mortgage  that  said  B.  retained  the  possession  of 
the  property  until  condition  broken,  or  until  Hi'-  debl  became 
due,  but  with  an  express  stipulation  that  if  the  said  mortgagor 
committed  any  waste  or  any  nuisance,  or  attempted  to  secrete 
or  remove  the  property,  tin-  mortgagee,  !'•..  should  he  authorized 
to  take  immediate  possession  thereof;  and  before  Hie  aaid  debl 
became  due  the  defendant,  Iv.  as  sheriff  of  said  county,  levied 
executions  upon  the  said  property  at  the  suit  of  other  creditors 
of  the  said  B.,  under  which   the  said  defendant    was  aboul    to 


2042  INSTRUCTIONS   TO    JURY. 

remove  said  property  from  the  possession  of  said  B.,  and  pro- 
ceed to  sell  the  same  and  pay  said  executions,  the  said  plaintiff, 
B.,  would  have  the  right  to  maintain  replevin  for  the  recovery 
of  said  personal  property.2 

i  Ashley  v.  Wright,   19  O.  S.  291. 

2  Nye,  J.,  in  Beebe  v.  Ensign,  Lorain  Co.  Com.  Pleas. 

Sec.  2246a.    Replevin  of  hogs  by  wife  from  purchaser  on  exe- 
cution against  husband. 

1.  Statement  of  claims. 

2.  Burden  of  proof  and  weight  of  evidence — Testimony  and 

evidence  distinguished — Credibility  of  witnesses — Ulti- 
mate facts. 

3.  Wife  claiming  stock  on  farm  of  husband  must  rebut  pre- 

sumption of  ownership  by  husband  arising  from  pos- 
session and  apparent  ownership — She  must  show  that 
she  has  separate  property,  or  receipt  of  money  during 
coverture. 

4.  Wife  entitled  to  increase  of  her  stock  though  raised  on 

husband's  farm — Not  subject  to  levy  by  creditor  of  hus- 
band. 

5.  Wife  estopped  by  conduct   from  claiming  ownership  as 

against  persons  dealing  with  husband  on  faith  of  his 
apparent  ownership. 

6.  Wife  estopped  by  fraudulent   purpose  and  conduct  of 

husband  to  avoid  execution  against  his  property  if  sha 
has  knowledgt  and  participates  therein. 

7.  Creditor  of  husband  must  have  knowledge  of  and  rely 

upon  apparent  possession  and  ownership  by  husband. 

8.  Wife  must  act  with  diligence  in  asserting  her  rights  when 

creditor  of  husband  levies  execution. 

9.  Alternative  verdicts. 

1.  Statement  of  claims.  This  is  an  action  in  replevin  wherein 
the  plaintiff  seeks  to  recover  possession  of  fourteen  shoats,  one 
white  sow  and  one  female  hog.  Plaintiff  is  the  wife  of  0.  S.  R,, 
the  two  living  on  a  farm  which  was  owned  by  the  husband. 


REPLEVIN.  2043 

The  claim  is  made  by  the  plaintiff  that  she,  as  the  wife,  pur- 
chased two  sows,  and  that  the  fourteen  shoats  are  the  increase 
thereof,  and  therefore  the  personal  property  of  the  plaintiff. 

2.  Burden  of  proof  and  weight  of  evidence — Testimony  and 
evidence  distinguished — Credibility  of  witnesses — UltimaU  fads. 
The  defendant  enters  a  general  denial  to  the  plaintiff's  petition; 
that  is,  he  denies  that  she  is  the  owner,  and  therefore  the  burden 
of  proving  that  she  is  the  owner  and  that  she  has  not  been 
estopped  by  her  conduct  is  upon  her.  This  she  must  do  by  the 
greater  weight  of  the  evidence.  There  is  a  difference,  gentle- 
men, between  testimony  and  evidence.  A  witness  may  take  the 
witness  stand  and  give  testimony  and  you  may  not  consider  it 
as  evidence  at  all,  or  you  may  consider  it  as  evidence,  just  as 
you  in  your  judgment  feel  it  ought  to  be  considered.  The 
testimony  has  to  be  run  through  the  sieve  of  your  minds,  as  it 
were,  before  it  can  become  evidence.  It  has  to  be  weighed  in  the 
scales  of  credibility.  You  must  consider  whether  the  story  is 
probable  or  improbable;  whether  it  is  consistent  with  reason 
and  common  sense  as  applied  to  the  transaction;  whether  il 
appears  that  the  testimony  has  been  given  frankly,  openly  ami 
squarely,  or  whether  it  has  been  given  otherwise.  You  arc  to 
consider  all  the  things  that  appear  in  this  case  that  onghl  to  be 
considered  in  determining  the  credibility  of  the  testimony  thai 
has  been  given.  You  do  not  have  to  believe  what  a  witness 
states  just  because  he  may  have  stated  it,  but  you  may  disbe- 
lieve it  altogether  if  you  consider  that  the  witness  is  unworthy 
of  belief;  or  you  may  believe  a  part  and  disbelieve  other  parts. 
You  should  consider  the  interest  or  motive,  if  there  is  any.  which 
prompts  a  witness  to  testify,  or  you  may  consider  the  wanl  of 
interest;  whether  or  not  a  witness  is  disinterested  and  has  no 
reason  under  all  of  the  circumstances  for  telling  anything  hut 
the  truth.      The  truth  is  the  most  sacred   thin-  that   courts  of 

justice  have  to  deal  with.     There  is  qo1  anything  in  I arl  of 

justice  that  is  more  shocking  than  an  untruth.     Therefore,  gi  n 
tlemen.  while  you  are  sitting  in  the  jury  bos  an, I  act,,,-  and  r 
the  solemn  obligation  that  you  have  taken,  you  have  a  sacred 


2044  INSTRUCTIONS   TO   JURY. 

duty  to  perform,  and  you  know  nothing  but  your  conscience, 
your  oath  and  your  duty. 

The  preponderance  of  the  evidence  which  must  be  established 
by  the  plaintiff  in  order  to  make  out  her  case  is  not  weighed  in 
mathematical  scales;  it  does  not  consist  of  the  greater  number 
of  persons  who  testified.  A  case  may  be  substantiated  according 
to  the  greater  weight  of  the  evidence  if  the  jury  so  thinks  by 
even  the  testimony  of  one  witness,  or  two ;  there  may  be  a  dozen 
witnesses  testify  on  one  side,  and  two  on  the  other,  and  the  jury, 
considering  all,  may  conclude  that  the  weight  of  the  evidence 
is  on  the  side  of  the  minority,  or  it  may  be  on  the  side  of  the 
majority  of  witnesses.  It  is  all  a  matter  of  opinion  and  judg- 
ment for  the  jury.  So  that  the  first  important  thing  for  you 
to  do  is  to  sift  the  testimony  and  find  out  what  the  evidence  is. 
The  evidence  consists  of  the  ultimate  facts  to  which  the  law 
attaches  legal  doctrines  and  consequences.  These  ultimate  facts 
are  drawn  from  the  testimony  by  the  jury,  and  the  court  in- 
structs the  jury  concerning  any  and  all  questions  that  may  be 
made  by  the  parties.  One  side  will  make  a  claim  on  one  line, 
and  another  will  make  a  different  claim;  and  an  inference  may 
be  drawn  from  the  evidence  by  the  jury,  and  the  court  may 
perceive  that  inferences  may  arise,  and  therefore  must  instruct 
you  as  to  the  law  applicable  to  these  various  questions  and  in- 
ferences, leaving  the  matter  entirely  to  your  judgment  and  dis- 
cretion as  to  what  you  shall  deem  proper. 

You  are  the  sole  judges  of  the  facts  and  the  court  in  whatever 
it  says  in  regard  to  the  law  does  not  undertake  to  express  any 
opinion  whatever,  leaving  the  matter  entirely  to  your  judgment. 
3.  Wife  claiming  stock  on  farm  of  husband  must  rebut  pre- 
sumption of  ownership  by  husband  arising  from  possession  and 
apparent  ownership — She  must  show  that  she  has  separate  prop- 
erty, or  receipt  of  money  during  coverture.  The  claim  is  made 
in  evidence  that  the  plaintiff  furnished  the  money  with  which 
the  two  hogs  were  purchased.  The  hogs  were  raised  on  the  farm 
which  belonged  to  the  husband  of  the  plaintiff  and  which  was 
farmed  by  him.      The  fact  of  ownership  being  the  sole  question 


REPLEVIN.  2045 

for  the  jury  to  decide,  the  court  will  instruct  you  concerning 
the  phases  of  the  claims  of  ownership  of  the  property  asserted 
by  the  wife,  so  as  to  enable  you  to  decide  whether  the  plaintiff 
was  or  was  not  the  owner. 

A  wife  living  with  her  husband  may  have  and  hold  property 
separate  and  apart  from  him.  But  in  a  case  like  this  where  a 
husband  owns  a  farm  on  which  he  is  conducting  the  business  of 
farming,  on  which  he  has  stock  and  is  raising  stock  and  other 
chattel  property,  the  wife  can  not  inherently  use  and  enjoy  her 
property,  such  as  stock,  if  she  has  any,  as  fully  and  separately 
after  marriage,  as  before,  so  far  as  outward  appearances  go, 
because  she  must  enjoy  it  in  a  different  way.  in  union,  as  it  were, 
with  her  husband.      [Walker  v.  Rcawy,  36  Pa.  St.  410.] 

A  married  woman  may,  however,  own  personal  properly  as 
her  own  as  separately  and  independently  as  if  unmarried.  Hut 
the  nature  of  the  possession  and  the  conduct  of  the  wife  and 
husband  may  be  such  as  to  operate  against  the  wife  so  far  as 
may  concern  the  creditors  or  persons  dealing  with  the  husband. 

The  rule  of  law  in  such  case,  therefore  is.  that  so  Ear  as  re- 
gards creditors,  all  the  monej7-  and  personal  property  of  the 
family  are  presumed  to  belong  to  the  husband  until  the  con- 
trary is  shown.      [Rhoads  v.  Gordon,  38  0.  S.  277.] 

So  the  rule  is  that  where  a  married  woman  claims  property 
in  opposition  to  her  husband's  creditors,  which  she  claims  to 
have  been  purchased  by  her  since  and  during  marriage,  the 
burden  is  upon  her  to  establish  by  the  greater  weighl  of  evi- 
dence, that  she  either  had  other  separate  means  or  property 
apart  from  her  husband,  or  that  she  has  received  money  or  other 
property  by  either  will,  descent,  conveyance  or  otherwise  and 
that  she  invested  it  in  the  property  claimed.  [  Walfa  r  \  /.'-  </>".'/. 
36  0.  S.  410;   Rlwads  v.  Gordon,  38  0.  S.  277.] 

The  obligation,  therefore,  rests  upon  plaintiff  not  only  to  rebut 
this  presumption  or  prima  facie  ownership  of  the  hogs,  bul  to 
establish  the  fact  of  her  ownership  of  the  same  by  the  greater 
weight  of  the  evidence. 

The  plaintiff  and  her  husband  have  given  evidence  concern- 
ing the  alleged  receipt   of  money    from   her   father  and    from   his 


2046  INSTRUCTIONS   TO   JURY. 

estate  at  different  times.  The  jury  will  weigh  and  consider 
this  testimony,  consider  the  time  of  its  alleged  receipt,  the  prob- 
ability of  its  retention  by  plaintiff,  or  any  part  thereof,  from  the 
time  of  its  receipt  until  the  time  the  hogs  were  purchased ;  you 
should  consider  the  credibility  of  the  witnesses  in  this  connec- 
tion, their  demeanor  while  on  the  witness  stand,  whether  they 
gave  a  satisfactory  account  of  the  alleged  receipt  of  the  money 
and  its  retention  and  disposition.  You  should  consider  also 
all  their  business  dealings  between  plaintiff  and  her  husband 
concerning  money  transactions  and  the  alleged  borrowing  of 
money  by  her  husband,  or  any  other  transactions  relating  to 
money.  You  should  also  consider  the  manner  in  which  the 
husband  dealt  with  the  title  to  his  farm,  his  admitted  object  and 
purpose  in  not  keeping  the  title  thereto  in  his  own  name,  and 
the  knowledge  of  the  wife  of  this  fact.  And,  if  on  full  con- 
sideration of  this  question  of  alleged  ownership  of  the  two  sows, 
you  conclude  that  the  presumption  of  ownership  in  the  husband 
is  not  overcome  and  that  the  claim  of  ownership  on  the  part  of 
the  plaintiff  is  not  established  by  the  greater  weight  of  the  evi- 
dence, then  that  will  end  your  consideration  of  the  case  and  your 
verdict  should  be  for  the  defendant. 

5.  Wife  <  a  I  it  I  (  d  to  increase  of  her  stock,  though  raised  on  hus- 
band's farm — Not  subject  to  levy  by  creditor  of  husband.  But 
if  you  find  that  plaintiff  was  the  owner  of  the  two  hogs,  then  you 
will  proceed  to  the  consideration  of  the  remaining  questions  in 
the  case.  If  the  plaintiff  was  the  owner  of  the  two  hogs,  then 
the  increase  therefrom,  the  fourteen  shoat's,  became  in  law  a  part 
of  her  separate  property,  even  though  the  same  were  kept  on 
her  husband's  farm,  and  though  her  husband  may  assist  or  take 
part  in  the  raising  thereof. 

If  a  wife  owns  personal  property  separate  and  apart  from  her 
husband,  a  creditor  has  no  right  to  levy  execution  thereon  for 
the  debt  of  the  husband.  Even  though  a  wife  buys  personal 
property  for  the  benefit  of  herself  and  her  husband,  and  to 
become  part  of  the  business  of  the  conduct  and  management  of 
the  farm,  she  may  by  her  conduct  in  respect  to  the  use  and  pos- 


REPLEVIN.  2047 

session  of  the  same,  become  estopped  from  claiming  ownership 
as  against  a  person  who  may  have  been  dealing  with  her  husband 
and  in  reliance  upon  the  apparent  possession  of  the  Bame  by  her 
husband  and  his  presumed  ownership  because  of  such  apparent 
possession  and  control. 

6.  Wife  estopped  by  conduct  from,  claiming  ownership  as 
against  persons  dealing  with  husband  on  faith  of  his  appart  ni 
ownership.  If  a  husband,  or  the  husband  of  plaintiff  in  the  con- 
duct and  management  of  a  farm  has  thereon  stork  purchased 
by  the  wife  which  is  in  his  possession  and  control,  and  which 
is  being  raised  and  fed  on  his  farm,  in  the  absence  of  conduct 
on  the  part  of  the  wife  in  treating  the  same  as  part  of  her  own 
separate  property;  or  if  she  willingly  allowed  the  hogs  as  her 
separate  property  to  become  mixed  and  mingled  with  the  stock 
and  other  chattel  property  of  her  husband,  or  to  be  and  remain 
in  his  apparent  control  and  possession  as  if  his  own,  so  as  to 
warrant  a  person  dealing  with  her  husband  in  believing  and 
relying  upon  the  possession  of  the  hogs  as  his  own.  and  if  the 
wife  made  declarations  to  the  person  dealing  with  her  husband 
that  she  did  not  own  any  of  the  property  in  her  husband's  pos- 
session, and  such  person,  the  creditor,  that  is  S.  in  this  case,  did 
rely  upon  such  possession  and  did  extend  credit  to  bim  in  reli- 
ance upon  such  possession,  in  such  case  the  wife  would  be 
estopped  from  claiming  ownership. 

If  a  wife  permits  her  husband  to  have  and  possess  her  separate 
property  as  his  own,  if  plaintiff  permitted  her  husband  to  have 
possession  of  the  hogs  and  raise  them  on  his  farm  as  if  his  own, 
and  to  hold  them  out  to  the  world  as  if  he  was  the  owner  thereof, 
she  will  be  estopped  to  claim  them  against  an  cxcc.tio,,  creditor 
of  her  husband,  whose  claims  arose  while  the  property  was  so 
held  and  who  relied  upon  such  apparent  ownership  and  title 
in  her  husband.  (21  Cyc.  1399,  n.  79. 1  1 1  the  creditor  did  no1 
rely  upon  such  apparent  ownership  of  title,  then,  of  course,  the 
wife  could  hold  them.  It  is  essential,  to  estop  her,  that  the 
person  must  know  of  this  situation  and  must  have  relied  upon 
it  before  the  wife  can  be  estopped. 


2048  INSTRUCTIONS   TO   JURY. 

C).  Wife  estopped  by  fraudulent  purpose  and  conduct  of  hus- 
band to  avoid  execution  against  Ids  property  if  she  has  knowledge 
and  participates  therein.  And  again,  if  the  wife  has  knowledge 
of  a  fraudulent  purpose  of  her  husband  in  taking  and  holding 
the  farm  on  which  they  live,  and  which  he  in  fact  owns,  in  the 
name  of  another  to  avoid  its  seizure  by  an  execution  creditor, 
the  law  will  charge  her  Avith  the  same  consequences  arising  from 
such  fraudulent  purpose  as  it  will  her  husband,  if  she  in  any 
wise  undertakes  to  aid  him  in  his  fraudulent  purpose  in  any 
wise  in  respect  to  any  of  his  property,  personal  as  well  as  real, 
and  she  will  be  estopped  from  asserting  a  claim  to  any  personal 
property  as  to  which  she  may  assert  a  claim  of  ownership  of  the 
circumstances  are  such  as  to  justify  the  inference  in  the  minds 
of  the  jury  that  she  is  attempting  to  assert  a  claim  to  defeat  a 
creditor  of  her  husband. 

7.  Creditor  of  husband  must  har<  knowledge  of  and  rely  upon 
apparent  possession  and  ownership  by  husband.  The  court  has 
given  you  the  various  rules  of  law  attaching  to  the  conduct  of 
the  plaintiff  in  connection  with  the  purchase  of  the  property 
and  its  care  and  possession  as  the  jury  may  find  it  to  be.  If 
by  its  application  to  the  evidence — that  is,  if  by  the  application 
of  the  law  to  the  evidence  in  this  case  you  find  that  though  plain- 
tiff may  have  bought  and  paid  for  the  hogs,  but  that  by  reason 
of  her  conduct  concerning  the  same,  that  because  of  the  manner 
in  which  the  same  were  kept  and  maintained,  that  S.  dealt  with 
her  husband  in  reliance  upon  the  apparent  possession  and  right 
to  the  chattel  property  on  the  farm,  and  that  he  believed  that 
her  husband  owned  the  property,  and  if  the  wife,  the  plaintiff, 
had  knowledge  of  a  fraudulent  purpose  on  the  part  of  the  hus- 
band in  keeping  the  title  to  the  farm  in  the  name  of  another 
person,  she  is  chargeable  in  law  with  knowledge  that  such  con- 
duct on  his  part  will  tend  to  deceive  her  husband's  creditors, 
and  with  such  knowledge  she  will  be  estopped  from  claiming 
ownership  to  the  personal  property  by  reason  of  her  conduct. 

8.  Wife  must  act  with  diligence  in  asserting  her  rights  when 
creditor  of  husband  levies  execution.      If  under  such  circum- 


REPLEVIN.  2049 

stances  a  creditor  of  her  husband  takes  judgment  against  him 
and  execution  is  levied  upon  personal  property,  a  part  of  which 
she  claimed,  under  such  circumstances  good  faith  and  fair  deal- 
ing requires  that  she  shall  act  with  reasonable  diligence  in  the 
assertion  of  her  rights  in  order  that  she  may  protect  innocenl 
persons  who  may  become  bidders  at  the  sale  as  well  as  the  execu- 
tion creditor. 

The  law  eharges  every  person  with  knowledge  of  the  law ; 
because  the  ordinary  person  may  not  know  his  legal  rights,  it 
is  incumbent  upon  him  or  her  to  take  proper  steps  to  learn  and 
know  what  they  are. 

The  statutes  of  this  state  describe  a  convenient,  precise  and 
exact  remedy  for  the  protection  of  the  rights  of  a  person  who 
claims  ownership  of  personal  property  upon  which  execution  is 
levied.  It  is  provided  that  when  a  constable  levies  on  property 
which  is  claimed  by  a  person  other  than  by  the  one  against  whom 
the  execution  issued— that  is,  claimed  by  someone  other  than 
the  husband  in  this  case— the  one  who  claims  the  title,  the  wife 
in  this  case,— shall  give  three  days  notice  in  writing  to  the 
plaintiff  of  his  or  her  claim,  which  shall  be  tried  before  some 
justice  at  least  one  year  prior  to  the  time  appointed  for  the 
sale.      Sec.  10371. 

If  the  justice  finds  that  the  property  levied  on  belongs  to  the 
one  claiming  it.  that  is,  to  the  wife,  and  not  to  the  person  against 
whom  the  execution  runs— that  is,  the  husband     then  thai  -lis 
poses  of  the  case  and  protects  the  rights  of  all  interested  persons 
as  well  as  the  one  who  claims  he  does  own  the  properly.      Sec. 

10372. 

In  other  words,  plaintiff  could  within  a  feu  days  after  levy 
have  had  a  trial  of  the  right  of  property  as  between  hersell  and 
S.,  a  judgment  creditor,  so  that  in  suet,  ease  neither  the  eon- 
stable  nor  any  purchaser  would  suffer  any  Loss. 

9.  Alternative  verdicts.     The  .jury  may  consider  her  conduct 
in  failing  to  take  steps  to  recover  the  property  from   the  con 
stable  in  pursuance  of  the  statutory  remedy  mentioned,  together 
with  all  of  her  acts  and  conduct,  ami  if  on  the  whole,  y..u  hud 


2050  INSTRUCTIONS   TO    JURY. 

that  in  good  conscience  she  is  estopped  from  claiming  the  prop- 
erty, your  verdict  should  be  for  the  defendant. 

If,  however,  you  find  that  the  property  belonged  to  the  plain- 
tiff at  the  time  of  the  levy  and  that  she  is  not  estopped  from 
claiming  title  thereto,  you  will  proceed  to  award  her  such  dam- 
ages according  to  the  reasonable  value  of  the  property  at  the  time 
of  the  levy  of  the  execution. 

Under  the  statutes  of  replevin  this  action  proceeds  as  one  for 
damages,  as  the  hogs  are  not  now  in  existence,  and  the  jury  will 
therefore  award  plaintiff  such  damages  as  will  fully  compensate 
her  for  the  property.  But,  if  you  find  that  plaintiff  did  not 
have  the  title,  or  having  the  title  that  she  was  estopped  by  her 
conduct  as  against  the  judgment  creditor  and  the  defendant, 
as  purchaser  on  execution  sale,  your  verdict  should  be  for  the 
defendant.1 
i  Ross  v.  Nedds,  Franklin  County,  Com.  PL,  Kinkead,  J. 


CHAPTER   CXXXII. 
ROBBERY. 

SEC.  SEC. 

2247.  Instructions      in      charge     of       2248.  Taking    property    in   presence 
robbery.  <>r   under   the   immediate 

1.  The   charge   in  the  indict-  control   of  another. 

ment.  224!).  Conspiracy   to  rob. 

2.  Burden — Degree    of    proof       2250.  Conspiracy    in    commission    of 

— Etc.  robbery. 

3.  The  statute.  2251.  Character    of    evidence    essen- 

4.  Force  and  violence.  tial  to  prove  conspiracy. 

5.  Intent.  2252.  Liability   independent  of   con- 

6.  Anything  of  value.  spiracy. 

7.  Possession    of   property  in       2253.  Assault  with   intent  to  rob — 

defendant.  Violence         concomitant 

8.  Charge      includes     assault  with   the  taking. 

and  battery. 

Sec.  2247.    Instructions  in  charge  of  robbery. 

1.  The  charge  in  the  indictment. 

2.  Burden — Degree  of  proof,  etc. 

3.  The  statute. 

4.  Property  taken  in  two  ways. 

5.  Force  and  violence. 

6.  Intent. 

7.  Anything  of  value. 

8.  Possession  of  property  in  defendant. 

9.  Charge  includes  assault  and  hatter)/. 

1.  The  charge  in  the  indictment.  The  indictmenl  charges 
that  the  defendant  on  the  -  —  in  the  county  of  and 
state  of  Ohio,  unlawfully  and  forcibly  did  make  an  assaull  upon 
one 1  and  did  unlawfully,  forcibly,  by  violence  and  put- 
ting him,  the  said  ,  in  fear,  take  from  hia  person,  and 

against   his   will,   certain   property,   to-wit:     [describe   it],    and 

2051 


2052  INSTRUCTIONS   TO   JURY. 

that  defendant  did  steal,  take  and  carry  away,  with  intent  to 
steal  the  same. 

2.  Burden — Degree  of  proof.  To  warrant  the  jury  in  find- 
ing defendant  guilty  you  must  find  beyond  a  reasonable  doubt 
the  existence  of  the  essential  elements  necessary  to  constitute 
the  crime  of  robbery,  and  the  burden  is  upon  the  state  to  prove 
the  same,  etc.,  etc. 

3.  The  statute.  Tbe  statute  with  reference  to  this  crime  pro- 
vides as  follows:  ''Whoever,  by  force  and  violence,  or  by  put- 
ting in  fear,  steals  and  takes  from  another,  anything  of  value, 
is  guilty  of  robbery."     [Code,  sec.  12:52.] 

4.  Property  taken  in  two  ways.  The  jury  is  instructed  that 
the  crime  may  be  committed  in  either  of  two  ways.  1.  It  may 
be  done  by  taking  anything  of  value  from  the  person  of  another, 
by  force  and  violence;  or,  2.  the  property  may  he  taken  from 
the  person  of  another  by  putting  him  in  fear. 

5.  Force  and  violence.  To  constitute  the  crime  of  robbery 
by  force  and  violence  it  must  appear  that  defendant  used  force 

and  violence  in  taking  tin-  property  from  the  person  of  

at  the  time  of  the  taking,  or  concomitant  therewith. 

The  force  and  violence  used  in  taking  the  property  from  the 
person  of  another  may  he  actual  or  constructive.  That  is,  the 
power  of  the  owner  to  retain  possession  of  his  property  may  be 
overcome  by  actual  violence  physically  applied,  or  by  putting 
him  in  such  fear  as  to  overpower  his  will. 

6.  Intent.  The  taking  of  the  property,  to  constitute  robbery, 
must  have  been  taken  with  felonious  intent;  that  is,  it  must  be 
made  to  appear  that  defendant  took  the  property  as  charged 

from  the  person  of with  the  intent  to  unlawfully  convert 

it,  or  to  appropriate  it  to  his  own  use,  and  to  deprive  him  of 
his  property. 

7.  Anything  of  value.  The  property,  to  be  within  the  mean- 
ing of  the  statute  as  being  anything  of  value,  must  be  money 
or  personal  goods  and  chattels.  It  is  sufficient  if  it  is  of  any 
value ;  it  does  not  matter  whether  it  is  of  much  or  of  little  value. 


ROBBERY.  2053 

8.  Possession  of  property  in  defendant.     If  the  jury  find  that 
the  property,  to-wit:   —     -   which  was  feloniously  taken  from 

the  person  of ,  as  charged  in  the  indictment,  was  found 

in  the  possession  of  such  property;  and  if  defendanl  has  doI 
given  a  satisfactory  explanation  of  his  possession  of  the  same, 
you  may  consider  such  fact  of  his  possession  of  the  property 
in  connection  with  all  the  other  facts  and  circumstances,  as 
shown  by  the  evidence,  for  whatever  worth  or  bearing  it  may 
have  in  your  judgment  on  the  question  of  his  guilt  or  innocence. 
[Methard  v.  State,  19  0.  S.  363,  3  C.  C.  551,  17  C.  0.    I 

See  charge,  ante,  sec.  1856. 

9.  Charge  includes  assault  and  batten).  The  offense  of  rob- 
bery charged  in  the  indictment,  includes  also  the  crime  of  assault 
and  battery.  Hence,  if  the  jury  finds  that  the  defendant  is 
not  guilty  of  the  crime  of  robbery,  but  is  guilty  of  assault  and 
battery,  then  you  may  return  a  verdict  for  assault  and  battery. 

An  assault  is  any  unlawful  physical  force,  creating  a  reason- 
able apprehension  of  immediate  physical  injury  to  a  person; 
an  intentional  attempt  by  force  to  do  an  injury  to  another.  A 
battery  is  committed  when  the  violence  is  actually  used  upon 
the  person. 

The  slightest  touching  of  another  in  an  angry,  rude  or  insolent 
manner  is  battery. 

Sec.  2248.     Taking  property  in  presence  or  under  the  imme- 
diate control  of  another. 

The  jury  are  instructed  that  "in  order  to  consummate  the 
offense  (of  robbery)  it  is  not  necessary  thai  the  property  should 
be  actually  taken  from  the  person  of  R.  M.,  the  individual 
named  in  the  indictment.  It  is  enough  if  the  property  was  in 
his  presence  and  under  his  immediate  control,  and  he  was  put 
in  fear  by  the  defendant,  and  whilst  the  property  was  so  in  his 
presence,  and  under  his  immediate  control;  and  he  laboring 
under  such  fear,  the  property  was  taken  by  the  defendant.1 

i  Turner  v.  State,  1  O.  S.  424  and  cases  cited;   Bishop'a  «'r.  Law,  h.v.  D 
Wharton's  Cr.  Law,  sec.  1696. 


2054  INSTRUCTIONS   TO   JURY. 

Sec.  2249.     Conspiracy  to  rob 

Now,  to  apply  these  principles  of  law  to  the  present  case. 
If  you  find  from  the  evidence  that  the  defendant  here  on  trial 
and  others  combined  and  agreed  among  themselves  to  commit 
an  assault  upon  the  person  of  H.  N.  with  the  intent  to  rob 
him,  and  in  pursuance  of  that  combination  or  agreement  this 
defendant  was  present,  aiding,  abetting,  or  encouraging  said 
assault,  and  that  this  defendant,  or  such  other  persons  as  have 
made  such  combination  or  agreement,  carried  out  the  purpose 
of  said  combination  and  agreement  and  committed  the  offense 
agreed  upon  the  person  of  said  II.  N.,  all  who  were  present 
aiding,  abetting,  and  encouraging  said  unlawful  purpose  would 
be  guilty  of  the  act  there  done. 

Again,  if  you  find  from  the  evidence  in  this  ease  that  the 
defendant  here  on  trial  and  one  or  more  other  persons  combined 
or  agreed  among  themselves  to  commit  an  assault  upon  and  rob 
II.  N.,  and  that,  in  pursuance  of  said  combination  or  agreement, 
said  persons  did  assault  and  rob  II.  N.  as  charged  in  the  indict- 
ment of  all  such  persons  who  were  present,  aiding,  abetting, 
and  encouraging,  would  be  guilty  of  the  offense  thus  agreed 
upon  and  committed,  and  this  defendant  was  a  member  of  said 
agreement  and  combination,  and  was  present,  aiding,  abetting, 
and  encouraging  in  said  robbery,  he  would  be  guilty  of  the 
crime  there  committed.  It  is  not  necessary  that  the  defendant 
on  trial,  himself  actually  assaulted  and  robbed  H.  X.  (if  you 
find  that  he  was  assaulted  and  robbed),  because  if  you  find  that 
the  defendant  was  a  member  of  the  combination  and  agreement, 
that  some  other  person  or  persons  did  themselves  in  fact  assault 
and  rob  H.  N.,  in  pursuance  of  such  agreement  or  combination 
for  that  purpose,  and  the  defendant  here  was  present,  aiding, 
abetting,  and  encouraging  the  act,  then  he  would  be  guilty.1 
i  Nye,  J.,  in  State  v.  Dedriek,  Loiain  Co.  Com.  Pleas. 

Sec.  2250.     Conspiracy  in  the  commission  of  robbery. 

It  is  claimed  by  the  state  that  the  defendant,  C.  D.,  here  on 
trial,  and  others  united  in  the  common  purpose  of  robbing  IT.  N., 


ROBBERY.  2055 

and  that  said  purpose  was  carried  into  execution.     Such  a  com- 
mon purpose  is  in  law  called  a  conspiracy. 

This  defendant  denies  that  he  had  any  such  purpose  or  intent, 
and  denies  that  he,  or  he  with  others,  assaulted  II.  N.  with  the 
intention  of  robbing  him,  or  with  any  other  intention,  and 
denies  that  he,  or  he  with  others,  took  any  money,  good.,  or 
property  from  the  said  H.  N.  Now  you  are  instructed  as  a 
matter  of  law  that:  "When  several  persons  unite  to  accomplish 
a  particular  object,  whether  they  collectedly  put  each  his  indi- 
vidual hand  to  the  work,  or  one  doing  it,  the  others  Lent  the 
aid  of  their  wills,  not  in  the  way  of  mere  pacific  desire,  hut  of 
active  co-operation,  the  persons  thus  uniting  are  all  and  several 
responsible  for  what  is  done. ' n 

i  Bishop's  Crim.  Law:  "If  several,  combining  both  in  intent  and  in  act, 
commit  a  crime  jointly,  each  is  guilty  the  same  as  if  lie  had  done 
the  whole  crime."  1  Bishop's  Crim.  Law,  sec.  630,  and,  "all  who 
by  their  presence  countenance,  or  encourage  in  the  commission  of 
the  crime,  are  liable  as  principal  actors."  1  Bishop's  Crim.  law. 
sec.  632.  But,  "if  two  or  more  persons  are  lawfully  together  and 
any  one  of  them  commits  a  crime  without  the  concurrence  of  the 
others,  the  rest  are  not  thereby  involved  in  the  guilt."  1  Bishop's 
Cr.  Law,  634.  And,  "if  two  or  more  persons  are  unlawfully  i . . - 
gether,  and  one  of  them  commits  a  crime  without  the  concurrence 
of  the  others,  the  rest  are  not  thereby  guilty."  "Also  it"  several 
persons  are  by  concurrent  understanding  in  the  actual  perpetra- 
tion  of  the  crime,  and  one  of  them,  of  his  sole  volition,  and  not 
in  pursuance  of  the  main  purpose,  does  another  criminal  thing 
which  is  in  no  way  connected  with  what  was  mutually  contem- 
plated, he  alone  is  liable." 

Sec.  2251.     Character  of  evidence  essential  to  prove  conspiracy. 

The  combination  or  conspiracy  may  he  shown  either  by  direel 
testimony  or  by  circumstances  and  conduct. 

Evidence  in  the  proof  of  the  conspiracy  will  generally,  from 
the  nature  of  the  case,  be  circumstantial.3  Though  common 
design  is  the  essence  of  the  charge,  it,  is  not  necessary  to  prove 
that  the  defendant  "and  others"  came  together  and  actually 
agreed  in  terms  to  have  that  design  and  to  pursue  it  by  common 
means.  If  it  is  proved  that  the  defendanl  "and  others"  pur- 
sued by  their  acts  the  same  object,  by  the  Bame  means,  so  as  to 


2056  INSTRUCTIONS   TO   JURY. 

complete  it  with  a  view  of  the  attainment  of  the  same  object, 
the  jury  would  consider  such  evidence  to  determine  whether 
all  were  engaged  in  the  conspiracy  to  effect  that  object. 

But,  if  the  defendant  was  present  when  IT.  N.  was  assaulted 
and  robbed  (if  such  you  find  to  be  a  fact),  and  the  offense  was 
committed  without  any  agreement  or  combination  with  him,  and 
without  his  knowledge  and  consent,  then  he  would  not  be  guilty, 
unless  he  take  some  part  in  the  assault  and  robbery.  The  mere 
presence  of  the  defendant  when  the  assault  and  robbery  was 
committed  upon  II.  N.  would  not  make  him  guilty. 

If  you  find  from  the  evidence  that  the  defendant  here  on 
trial  and  others  were  at  the  place  of  the  alleged  offense,  and 
that  the  defendant  and  others  with  whom  he  was  associated 
were  there  engaged  in  a  common  purpose  of  robbing  H.  N.,  and 
that,  in  pursuance  of  said  engagement,  the  said  H.  N.  was  in 
fact  robbed,  then  all  who  were  there,  aiding,  abetting,  and  en- 
couraging in  said  common  purpose  would  be  guilty  of  the  offense 
there  committed  in  pursuance  of  said  common  purpose.2 

i  3  Greenleaf's  Ev..  sec.  93. 

2  Nye,  J.,  in  State  v.  Dedrick,  Lorain  Com.  Pleas. 

Sec.  2252.     Liability  independent  of  conspiracy. 

But,  gentlemen  of  the  jury,  independent  of  any  combination 
or  agreement,  if  you  find  from  the  evidence  that  has  been  given 
to  you  that  the  defendant  made  an  assault  on  H.  N.,  and  took 
from  him  by  force  or  violence,  or  by  putting  in  fear,  as  has  been 
heretofore  explained  to  you.  any  money  of  any  value,  then  he 
would  be  guilty  for  his  own  acts.  Every  person  is  responsible 
for  his  own  acts,  and  if  there  was  no  agreement  between  the 
defendant  and  any  other  person,  or  persons,  he  would  be  indi- 
vidually responsible  for  all  that  he  did  on  that  day,  if  you  can 
find  that  he  did  anything. 

Sec.  2253.     Assault  with  intent  to  rob — Violence  concomitant 
with  the  taking. 
The  jury  are  instructed  that  the  crime  of  robbery  can  not  be 
committed   unless   there   has   been   some  force   or  violence,   or 


BOBBERY.  2057 

putting  the  person  alleged  to  have  been  robbed  in  fear.  The 
offense  may  be  committed  by  putting  in  fear  without  any  force 
or  violence,  or  without  putting  in  fear,  but  by  force  or  violence. 
There  being  no  putting  in  fear,  violence  is  then  an  essential 
ingredient  in  the  crime.  Violence,  in  order  to  constitute  an 
assault  with  an  intent  to  rob,  must  be  concomitant  with,  and  not 
subsequent  to,  the  attempt  to  take  the  property.  If  you  find 
that  the  accused  had  abandoned  his  attempt  to  take  the  prop- 
erty, and  there  was  a  struggle  in  order  to  avoid  arrest,  however 
violent  this  struggle  may  have  been,  it  did  not  characterize  the 
act  as  an  attempt  to  rob.1 
i  Hanson  v.  State,  43  0.  S.  376. 


CHAPTER)  CXXXIIL 
SALES— WARRANTY. 


SEC. 

2254. 

2255. 

2256. 
2257. 


2258. 
2259. 

2260. 

2261. 
2262. 

2263. 


SEC. 

Sale,  when  complete.  2264. 

What  constitutes  valid  sale — 
Fraudulent  contract. 

Sale  on  credit. 

Representation  as  to  finan- 
cial condition  invalid-  2265. 
ating  —  Insolvency  of 
buyer  intention — Persons 
presumed  to  anticipate 
probable  consequences  of  2266. 
known  conditions. 

What      language      constitutes 

warranty  in  sales.  2267. 

Buyer   having   opportunity  to 

inspect  —  Caveat   emptor       2268. 
— Rule  applies  unless  ex- 
press    or     implied     war- 
ranty. 2269. 

Recoupment  of  damages  where 
vendee  lias  used  property 
under    warranty     as     to       —  li  7  < » . 
quality. 

Notice     of     rescission,     when 
necessary. 

Sale  through  mistake  may  be 
rescinded    in    action    for 
purchase   price  when. 
Whether    delivery    to    mill    a 
sale. 


Action  to  recover  purchase 
price  on  sale  —  When 
article  unsuitable  for  use 

— Must  be  rescission  and 
tender  back. 

Acceptance  and  continued  use 
of  thing  sold  after  knowl- 
edge that  it  will  not 
work. 

Fraud  and  deceit  in  sale  of 
property  —  Parties  deal- 
ing on  an  equality. 

Same  continued — Opportunity 
of   inspection. 

Same  continued — What  com- 
mendations may  be  made 
— Dealers  talk. 

Expression  of  opinion  as  to 
amount,  value,  and  qual- 
ity. 

Breach  of  warranty  in  sale 
of  horse. 

1.  Express   warranty  defined' 

2.  Statement  of   opinion. 

3.  Opportunity  for  inspection 

and  examination. 

4.  Measure  of  damages. 


Sec.  2254.     Sale— When  complete. 

"All  that  is  necessary  to  pass  property  is  that  the  buyer  and 
seller  agree.  If  one  who  has  a  long  course  of  dealing  with 
another  have  a  correspondence  in  regard  to  certain  specific  prop- 
erty, nearer  to  the  purchaser  than  to  the  seller,  and  more  prop- 
erly, by  reason  of  their  business  relations,  in  the  control  of  the 
2058 


SALES — WARRANTY.  2059 

purchaser,  and  they  agree,  one  to  buy  and  the  other  to  sell,  the 
sale  is  complete  just  as  soon  as  they  agree,  and  the  seller  charges 
the  buyer,  and  the  buyer  credits  their  respective  books  with  the 
price  of  the  property."1 
i  Robinson  v.  N".  H.  L.,  6  Xeb.  328,  332. 

Sec.  2255.    What  constitutes  valid  sale — Fraudulent  contract. 

The  rights  of  the  parties  in  this  case  depend  upon  whether 
or  not  there  was  a  valid  consummated  sale  by  K.  to  II. ;  a  sale 
is  not  consummated  simply  by  transmitting  the  possession  of 
the  goods  from  the  seller  to  the  purchaser;  there  must  have 
been  another  condition,  namely,  title  of  goods;  the  right  of 
the  property  therein  must  also  have  passed  from  the  seller  to 
the  buyer;  unless  this  ownership  of  the  goods,  as  well  as  the 
possession  thereof,  passed  from  the  vendor  to  the  vendee,  there 
was  no  consummated  sale  and  the  ownership  remains  in  the 
vendor.  Whether  or  not  the  title  to  the  right  of  the  property, 
the  ownership  of  the  goods  passed,  depends  upon  the  existence 
of  a  legal  valid  contract  of  sale  made  between  the  vendor  and 
the  vendee;  for  although  possession  may  be  transferred  by 
exchange  from  one  to  another,  yet  title  and  ownership  changes 
only  by  the  operation  of  the  law,  through  the  medium  of  the 
valid  contract;  a  valid  contract  being  an  avenue  through  which 
ownership  can  pass. 

An  invalid  or  fraudulent  contract  will  not  be  recognized  by 
the  law  as  of  any  potency,  or  as  a  means  to  carry  the  righl  of 
ownership  from  one  to  another.  *  *  *  Where  a  sale  is  made 
for  cash,  the  goods  being  delivered  simultaneously  with  the 
payment  of  the  price,  both  seller  and  buyer  in  thai  instance 
has  received  what  he  bargained  for,  the  one  giving  the  goods 
and  the  other  receiving  their  equivalent  in  cash,  BO  that  each 
has  all  the  benefit  which  can  accrue  to  him  from  sale,  and  each 
has  performed  every  obligation  which  his  duty  under  the  sale 
requires;  the  contract  is  complete  and  valid,  and  title  to  pos- 
session has  passed.1 

i Wright,   J.,   in  Knight   &    Co.    v.    Hopkins.   Hamilton    Co.    Own,    Pleas. 

Talcott  v.  Henderson,  30  O.  S.  162. 


2060  INSTRUCTIONS   TO   JURY. 

Sec.  2256.     Sale  on  credit. 

But  in  the  case  of  sales  made  upon  credit  the  conditions  are 
different;  there  no  cash  passes  from  buyer  to  seller,  although 
possession  of  the  goods  is  given;  the  seller  relies  not  on  the 
equivalent  in  value  already  received,  but  trusts  to  obtain  it  in 
the  future.  This  trust  is  based  upon  and  grows  out  of  those 
things  which  influence  the  mind  of  the  seller  at  the  time  he 
parted  with  his  goods;  and  if  the  statements  or  conduct  of  the 
buyer  were  things  which  influenced  the  mind  of  the  seller  in 
giving  the  credit,  then  his  statements  and  conduct  must  be  fair 
and  true,  because  if  they  are  false  and  fraudulent,  and  the 
seller  has  relied  upon  that  which  does  not  exist,  there  can  be 
in  that  case  no  mutual  understanding  or  contract  which  can 
serve  the  principles  of  transferring  title  and  ownership ;  there 
is  no  valid  contract  of  sale,  the  ownership  remains  still  in  the 
original  proprietor  and  he  may  take  the  goods  back,  even  though 
the  other  has  possession  thereof.     *     *     * 

In  sales  upon  credit  the  mere  faet  that  the  seller  has  gotten 
a  bad  bargain,  or  is  mistaken  in  what  he  thought  was  the  buyer's 
financial  responsibility  does  not  at  all  entitle  him  to  rescind 
the  sale.  If  the  vendor  sells  on  credit  and  merely  takes  his 
chances  then  he  has  bargained  for  nothing  which  he  has  not 
gotten,  and  the  sale  stands,  although  the  buyer  never  pays.  It 
is  only  where  the  seller  is  misled  by  the  buyer,  and  is  induced 
to  give  credit  by  a  false  belief  which  is  occasioned  by  the  acts 
and  representations  of  the  buyer  that  he  can  rescind  the  sale 
and  recover  back  his  goods.  *  *  *  If  the  vendor  merely 
takes  his  ehances  and  is  not  influenced  by  the  conduct  or  state- 
ments of  the  vendee,  then  the  sale  is  valid,  and  he  has  no  right 
to  replevin  the  goods ;  but  on  the  contrary,  if  credit  was  given 
on  account  of  misrepresentations  made  by  the  vendee,  and  it 
turns  out  that  all  such  representations  were  the  cause  of  induc- 
ing the  sale,  and  they  were  false  and  fraudulent,  then  the  sale 
is  invalid  and  the  title  does  not  pass,  and  they  may  recover  back 
their  goods.1 

i  Wrip.it.  J.,  in  Knight  &  Co.  r.  Hopkins.  Hamilton  Co.  Com.  Pleas.     Tal- 
coti    r.   Henderson,  30  O.  S.   162. 


SALES — WARRANTY.  2061 

Sec.  2257.  Representations  as  to  financial  condition  invalidat- 
ing— Insolvency  of  buyer — Intention — Per- 
sons presumed  to  anticipate  probable  conse- 
quence? of  known  conditions. 

Where  a  buyer  although  he  makes  no  statements  whatever 

as  to  his  financial  condition,  and  is  not  called  upon  to  make  any 

such  statement,  but  intends  at  the  time  of  making  such  purchase 

not  to  pay  for  the  goods,  this  will  invalidate  the  sale.     Surd 

conduct  amounts  to  a  misrepresentation,  because  when  a  man 

goes  to  buy,  a  mere  offer  or  attempt  to  buy  carries  with  it   the 

inference  that  the  proposed  buyer  intends  to  pay  for  what  he 

is  buying  whether  he  expressly  promises  or  not;    but  if,  in  fact, 

he  intends  not  to  pay,  then  his  conduct  in  offering  to  buy,  which 

indicates  an  intention  to  pay,  is  false,  and  inasmuch  .is  the  seller 

would  not  have  sold  had  he  known  that  the  buyer  did  not  intend 

to  pay,  he  has  been  influenced  by  a  false  belief  induced  by  the 

buyer,  the  buyer's  conduct  is  fraudulent,  and  the  sale  is  void. 

But  in  this  connection  the  fact  that  the  buyer  is  insolvent  and 

does  not  disclose  his  insolvency  to  the  seller  does  not  necessarily 

prove  that  he  intended  not  to  pay  when  he  purchased  the  goods. 

What  his  intention  was  is  for  you  to  determine  from   all   the 

evidence;    intention  is  the  condition  of  the   mind,   intangible, 

invisible,  and  consequently  incapable  of  direct,   positive  proof, 

unless  there  appears  from  some  outward  expressions,  bu1   must 

generally  be  arrived  at  by  a  consideration  of  the  situation,  sur 

roundings,  and  circumstances  in  which  the  person  whose  inten 

tion  is  in  question  is  found.     And  as  a   rule  of  proof  in  such 

cases,  found  by  experience  to  be  just   and   wise,  the  law   pre 

sumes   that    reasonable    persons    anticipate    the    ordinary    and 

probable  consequences  of  known   conditions  and   consequences; 

hence   if  a  purchaser  of  goods  has  knowledge  of  his  nun  insoh 

ency  'and  knows  that  he  will  be  unable  to  pay  tor  the  g Is,  Ins 

intention  not  to  pay  should  be  presumed.  Bui  if  the  purchaser 
does,  in  fact,  intend  to  pay,  and  has  reasonable  expectations  to 
pay   then  the  presumption  does  not  arise,  and  the  sale  ,s  valid, 


2062  INSTRUCTIONS  TO  JURY. 

even  though  he  be  insolvent  and  knows  it  and  does  not  disclose 
it.  Fraud  is  never  presumed,  and  the  burden  of  proving  its 
existence  is  always  upon  him  who  alleges  it.1 

i  Wright,  J.,  in  King  &  Co.,  v.  Hopkins,  assignee,  Hamilton  Co.  Com. 
Pleas.     Fraud.     Talcott  v.  Henderson,  30  0.  S.  162. 

Sec.  2258.     What  language  constitutes  warranty  in  sales. 

"If  during  the  negotiation  for  the  sale  of  the  horse,  the  de- 
fendant made  an  assertion  of  soundness,  which  assertion  was 
intended  to  cause  the  sale  of  the  horse,  and  was  operative  or 
effectual  in  causing  such  sale,  then  such  assertion  would  consti- 
tute a  warranty.  But  a  mere  expression  of  an  opinion  is  not 
enough  to  constitute  a  warranty.''1 

(a)   Implied   warranty   that  goods  arc   fit   for  purpose  sold. 

The  jury  are  instructed  that  where  a  person  sells  goods  for 
a  specific  purpose,  with  knowledge  that  the  purchaser  is  getting 
them  for  that  special  purpose,  such  purchaser  has  a  right  to 
expect  that  they  will  answer  that  purpose,  and  when  the  vendor 
so  sells  them,  with  full  knowledge  of  what  use  the  vendee  expects 
to  make  of  them,  the  law  is  that  the  vendor  impliedly  under- 
takes with  and  warrants  to  the  purchaser  that  the  goods  are 
fit  for  the  use  intended,  and  if  it  turns  out  that  they  are  not  fit 
for  such  use,  there  is  a  breach  of  warranty.2 

i  From  Little  v.  Wood  worth,  8  Neb.  283.  The  court  held  in  this  case 
that  no  particular  form  or  set  of  words  are  necessary  to  consti- 
tute a  warranty,  but  that  any  form  of  words  will  be  sufficient. 

zByers  v.  Chapin,  28  O.  S.  300.  See  L.  R.  2  Q.  B.  D.  162;  Wilson  v. 
Lawrence,  139  Mass.  321.  The  particular  purpose  must  be  made 
known  by  the  vendee  if  he  desires  to  place  upon  the  seller  the 
responsibilities  flowing  from  an  implied  warranty.  Hight  t?.  Bacon, 
126  Mass.  13.  If  the  buyer  relies  upon  himself  there  is  no  war- 
ranty.    Mattoon  v.  Rice,  102  Mass.  236. 

Sec.  2259.  Buyer  having  opportunity  to  inspect — Caveat 
emptor — Rule  applies  unless  express  or  im- 
plied warranty. 

The  jury  are  instructed  as  matter  of  law  that  in  sales  of 
personal  property,  in  the  absence  of  an  express  warranty,  where 


SALES — WARRANTY.  2063 

the  buyer  has  an  opportunity  to  inspect  the  goods  or  article, 
and  the  seller  is  guilty  of  no  fraud,  and  is  not  the  manufacturer 
or  grower  of  the  article  he  sells,  the  maxim  of  caveat  emptor 
applies.1  By  that  we  mean  that  the  purchaser  must  take  care 
that  there  are  no  defects.  The  purchaser  buys  at  his  own  risk. 
This  he  does  unless,  as  stated,  there  are  present  any  of  the  facta 
just  stated,  an  express  warranty,  or  unless  the  circumstances 
of  the  ease  are  such  that  the  law  will  imply  a  warranty.2 

An  implied  warranty  is  one  which  the  law  implies  from  the 
circumstances  of  the  case,  and  is  really  founded  upon  the  pre- 
sumed intention  of  the  parties.  The  implication  which  the  law- 
draws  from  what  must  obviously  have  been  the  intention  of  the 
parties,  with  the  object  of  giving  efficacy  to  the  transaction  and 
preventing  a  failure  of  consideration  as  can  not  have  been 
within  the  contemplation  of  either  side. 

If  the  jury  finds  from  a  preponderance  of  the  evidence 
that  the  defendants  engaged,  for  a  reasonable  or  valid  consid- 
eration, to  build  them  three  boilers  to  run  the  engines  for  their 
rolling-mill,  and  agreed  to  build  them,  they,  the  defendants, 
impliedly  agreed  that  the  boilers  should  be  built  of  good  ma- 
terials and  good  workmanship;  and  should  be  free  from  .ill 
such  defects  of  material  and  workmanship,  whether  such  defects 
are  latent  or  otherwise,  as  would  render  them  unfit  for  the  usual 
purposes  of  such  boilers.3 

i  Barnard  v.  Kellogg,   10  Wall.  388. 

2  Story  on  Sales   (3d  ed.),  sec.  348,  20  Johns,  196. 

sRodgers  v.  Niles,   11   0.  S.  48. 

Sec.  2260.     Recoupment  of  damages  where  vendee  has  used 
property  under  warranty  as  to  quality. 

The  jury  are  instructed  that  if  you  find  thai  there  was  i 
breach  of  warranty  as  to  quality  of  the  goods  under  the  in- 
structions given  you  on  that  point,  the  defendanl  may  do  one 
of  two  things.  He  may  entirely  rescind  tlie  contracl  of  sale. 
return  the  goods,  or  offer  to  return  them,  or-  retain  the  goods 
without  offering  to   return  them,   and    in   a   suil    for  the    price 


2064  INSTRUCTIONS   TO   JURY. 

recover  any  damages  he  may  have  sustained  by  reason  of  the 
breach  of  warranty.  He  may  recover  damages  for  the  difference 
in  value  of  the  goods  actually  received  by  him  and  the  value  of 
goods  had  they  been  of  the  quality  and  grade  represented  and 
warranted  to  be,  as  well  as  any  trouble  and  expense  incurred 
by  reason  thereof.1 

i  Dayton  v.  Hoogland,  39  O.  S.  671,  82  and  cases;  see  26  0.  S.  537,  38. 
Tender  of  an   animal   back  is  not   necessary  to   recover  damages,   that    is, 

difference  in  value.     Beresford  v.  McCune,  1  C.  S.  C.  R.  50. 
If    there    is    a    false   warranty   the    vendee    may    rescind    the   contract   for 

the  fraud,  and  restore  the  goods  within  a  reasonable  time.     Nelson 

v.  Martin,    105   Pa.   St.   229;    Freyman   v.   Knecht,  78   Pa.   St.    144; 

Sparling  v.  Marks,   86  111.   125. 
Or  the  vendee   may  retain  the   goods   and   rely  on   the   fraud   in   defense. 

Cavender   r.    Roberson,   33  Kan.   626;    Carey   v.   Guillow,    105  Mass. 

18;   Ilerfort   v.  Cramer,  7  Colo.  483,  489. 

Sec.  2261.     Notice  of  rescission,  when  necessary. 

The  jury  are  instructed  that  the  law  requires  a  person  who 
desires  to  rescind  a  sale  on  account  of  a  breach  claimed  as 
against  the  other  contracting  party,  good  faith  requires  that 
he  should  give  notice  of  his  claim  or  purpose  to  rescind  when- 
ever bis  failure  so  to  do  would  injure  the  defaulting  party;  and 
that  if  he  willfully  keeps  silent  when  he  ought  to  speak  he  will  be 
regarded  as  waiving  such  default,  or  as  electing  not  to  rescind.1 
i  Leeds  v.   Simpson,   16  O.   S.   321. 

Sec.  2262.     Sale  through  mistake  may  be  rescinded  in  action 
for  purchase  price,  when. 

The  jury  are  instructed  that  a  contract  of  sale  made  under 
a  mistake  as  to  a  material  fact  may  be  rescinded  by  the  party 
sought  to  be  charged  as  the  vendee,  in  an  action  by  the  vendor 
to  recover  the  purchase  price  from  the  vendee.  The  mere  fact 
that  the  vendee  has  given  a  note  for  the  purchase  price  of  the 
goods  sold  does  not  amount  to  a  waiver  of  such  mistake  or 
prevent  him  from  insisting  upon  the  mistake  as  a  defense,  unless 
he  had  knowledge  thereof,  or  ought  to  have  known  of  it.     It  is 


SALES WARRANTY.  2065 

very  clear  that  a  defendant  can  claim  no  benefit  of  a  mistake 
as  to  what  he  ought  to  have  known,  or  could,  by  reasonable 
diligence,  have  found  out.  If  the  defendant,  at  the  time  of  the 
giving  of  the  note,  knew  of  that  fact,  or  is  justly  chargeable, 
under  all  the  circumstances  of  the  case,  with  a  want  of  reason- 
able diligence  to  ascertain  it,  and  to  guard  against  the  alleged 
mistaken  belief,  the  defense  on  the  ground  of  mistake  fails.  In 
determining  this  matter  of  the  want  of  reasonable  diligence 
you  may  look  to  and  consider  what  the  plaintiff  said  and  in- 
sisted on  in  regard  to  the  barrels  sold,  and  you  may  well  con- 
sider  whether  if  the  plaintiffs  themselves  entertained  the  mis- 
taken belief  that  the  barrels  were  not  suitable  for  oil  barrels, 
if  properly  glued,  and  asserted  it  as  a  fact,  any  want  of  reason- 
able diligence  can  justly  be  imputed  to  the  defendant  for  having 
the  same  mistaken  belief. 

If  the  defendant  acted  solely  upon  the  statements  or  repre- 
sentations made  by  the  vendor,  and  the  defendant  did  not  have 
any  opportunity  to  see  and  inspect  the  barrels,  under  such  cir- 
cumstances they  can  not  be  charged  with  want  of  diligence.1 
i  Byers  v.  Chapin,  28  0.  S.  300. 

There  is  no  sale  if  there  has  been  a  material  mistake  as  to  their  iden- 
tity. Hawley  v.  Harris,  112  Mass.  32.  There  is  no  meeting  of 
minds  to  form  a  contract  if  there  has  been  a  mistake.  11  Pet.  71: 
20  Pick.  139.  Nor  is  there  a  sale  if  there  be  a  materia]  misunder- 
standing as  to  the  price.     40  Cal.  459;  62  Wis.  ,"sl.    |)   Kan,  277. 

Sec.  2263.     Whether  delivery  of  wheat  to  mill  a  sale. 

If  the  evidence  shows  that  it  was  understood  between  W.,  the 
plaintiff,  and  J.,  the  miller,  that  the  wheat  in  controversy  was 
put  in  the  mill  to  be  kept  until  such  time  ;is  W.  chose  to  demand 
redelivery,  and  that  J.  agreed  to  redeliver  it  to  \V.  upon  such 
demand,  the  transaction  was  not  a  sale  of  tin-  wheal  t<»  J.,  but 
the  wheat  remained  the  property  of  W.1 

(a)  Effect  of  mixing  with  other  wheat  n/><>>i  transaction, 
"And  this  character  of  the  transaction  is  no1  l<>si  either,  even 
though  the  custom  of  tin-  country   in   reference  to  which   1 1 » « - 
wheat  w^as  received  warranted  the  mixing  of  it  with  the  wheat 


2066  INSTRUCTIONS   TO   JURY. 

of  others  in  the  mill,  or  because  it  should  appear  that  by  the 
consent  of  the  plaintiff  and  the  mijler  the  wheat  was  mixed  with 
other  wheat  in  the  mill  belonging  to  the  miller  himself. 

1.  With  understanding  that  miller  ivas  to  ship  or  use  same 
on  his  own  account,  etc.  ''If  the  jury  find  that  the  plaintiff 
did  deposit  wheat  with  J.  D.  J.,  at  his  mill,  yet  if  the  jury  find 
that  at  the  time  J.  received  the  wheat  it  was  to  be  and  was  mixed 
in  a  common  mass  with  other  wheat  in  the  mill,  and  with  the 
knowledge  or  understanding  that  J.  was  to  retain  and  use  or  ship 
the  same,  for  sale  on  his  own  account,  at  his  pleasure,  and  on 
demand  of  the  plaintiff  was  either  to  pay  the  market  price  thereof 
in  money  or  redeliver  the  wheat,  or  other  wheat  in  place  of  it 
to  the  plaintiff,  the  title  of  the  wheat  passed  to  J.,  and  the  plain- 
tiff can  not  recover  in  this  action."2 

2.  Mixed  trith  consent  of  owner.  That  if  the  proof  shows 
that  the  plaintiff's  wheat,  either  with  or  without  his  consent, 
was  mixed  in  a  common  mass  with  other  wheat  in  the  mill  be- 
longing to  the  miller  (or  to  the  miller  and  other  persons  who 
had  deposited  wheat  in  the  mill),  the  plaintiff  acquired  thereby 
a  property  in  the  common  mass  of  wheat  equal  in  quantity  to 
that  he  had  put  in  the  mill."3 

(b)   Option  to  demand  equal  number  of  bushels  of  common 

mass. 

"If  the  jury  find  that  it  was  the  understanding  between 
the  miller  and  the  plaintiff  that  the  plaintiff  had  the  option 
to  demand  and  receive  the  return  of  his  own  wheat  or  an  equal 
number  of  bushels  of  wheat  out  of  the  common  stock  in  the  mill 
belonging  to  the  miller  and  the  depositors,  including  plaintiff's, 
or  to  then  elect  to  sell,  then  the  miller,  as  to  the  plaintiff's  wheat, 
was  a  bailee,  and  was  not  the  owner." 

"If  plaintiff  delivered  wheat  at  J.'s  mill,  and  the  same  was 
mingled  with  wheat  of  the  miller  or  other  depositors,  he,  the 
plaintiff,  did  not  thereby  lose  his  property,  but  he  retained  a 
property  in  so  many  bushels  of  the  common  mass  in  the  mill 
as  he  had  put  in,  notwithstanding  that  it  may  have  been  under- 
stood between  the  miller  and  the  plaintiff  that  the  plaintiff's 


SALES WARRANTO-.  2067 

wheat  should  be  mingled  with  the  miller's  wheat  and  the  wheat 
of  other  depositors. ' ' 

"If  the  understanding  between  the  miller  and  the  plaintiff 
provides  that  J.  was  to  deliver  to  plaintiff  out  of  the  common 
mass  in  the  mill  the  number  of  bushels  which  he  put  in  the 
common  mass  in  the  mill,  and  his  proportion  was  still  in  the 
common  mass,  the  plaintiff  is  entitled  to  a  verdict."4 
i  Chase  v.  Washburn,  1  0.  S.  244. 

2  This  was  given  by  request.  Chase  v.  Washburn,  1  ().  S.  244.  2.V  •  117 
Pa.  St.  604;  75  la.  267. 

s  James  v.  Plank,  48  0.  S.  255.  It  was  a  bailment,  so  tbat  the  plaintiff 
acquired,  as  in  charge  stated,  property  in  common  mass.  Id. 
"Where  the  identical  goods  delivered  are  to  be  restored  in  the  same 
or  modified  form  (as  where  wheat  is  to  be  restored  as  flour), 
the  property  in  the  goods  is  not  changed;  the  transaction  is  a 
bailment."     150  U.  S.  312,  329;   7  N.  Y.  433;  8  Allen,  182. 

*  Stillwell,  J.,  in  Geo.  W.  Hall  v.  John  Watkins,  S.  C,  No.  1707. 

"Where  grain  is  deposited  with  a  warehouseman,  with  an  understanding 
that  it  will  be  mingled  with  other  similar  grain  of  other  parties, 
and  that  its  equivalent  from  the  common  mass  will  be  returned 
in  the  same  or  an  altered  form,  the  depositor  is  a  tenant  in 
common  pro  rata  with  all  the  other  like  depositors,  and  the  ware- 
houseman is  their  common  bailee.  This  is  merely  the  <as«-  of  an 
intermixture  or  confusion  of  goods  with  the  consent  of  the  owners, 
and  each  remains  the  owner  of  his  share.  Benjamin  on  Sales, 
5,  46  0.  S.  244,  48  0.  S.  255,  133  Mass.  154,  160,  117  Pa.  St. 
589,  603. 


Sec.  2264.  Action  to  recover  purchase  price  on  sale — When 
article  unsuitable  for  use — Must  be  rescission 
and  tender  back. 

If  the  jury  find  that  the  machine  furnished  would  accomplish 
what  his  contract  called  for,  then  he  is  entitled  to  recover  1  h<* 
price  of  the  machine  together  with  interest  as  claimed  in  his 
petition. 

If,  on  the  other  hand,  after  a  full  and   fair  trial  of  the  ma- 
chine, under  the  conditions  that  the  contract    called    for,   the 
machine  failed  to  cut  in  a  suitable  manner  veneers  up  1<»  three 
eighths  of  an  inch  in  thickness,  the  defendants,  or  the  parties 
for  whom  the  machine  was  purchased,  had  a   righl   l<>  tender 


2068  INSTRUCTIONS   TO   JURY. 

back  the  machine  to  the  plaintiffs  and  to  rescind  the  contract. 
Or,  if  the  plaintiffs  refuse  to  receive  back  the  machine,  to  place 
the  same  in  storage  at  their  expense  and  risks.  If  you  do  not 
find  from  the  evidence  that  the  machine  as  constructed  was 
capable  of  performing  the  work  that  the  contract  required  of 
it  to  perform,  under  the  conditions  laid  down  by  the  court, 
you  will  then  look  at  the  testimony  as  to  how  the  defendants 
dealt  with  the  machine.  If,  after  using  all  proper  efforts  to 
make  the  same  work,  with  the  wood  properly  prepared  for  the 
purpose,  and  the  operator  was  of  sufficient  skill,  the  machine 
failed  to  perform  what  was  required  of  it,  the  defendants  had 
a  right  to  tender  it  back,  if  done  promptly,  and  thereby  rescind 
the  contract.  But  under  such  circumstances  it  was  their  duty 
to  act  promptly,  and  if  they  failed  to  do  so,  and  used  the  ma- 
chine  for  a  considerable  period  of  time  afterwards,  they  no 
longer  had  a  right  to  return  it. 

If  you  tint!  from  the  testimony  that  the  machine  was  not 
capable  of  per  forming  the  work  for  which  it  was  purchased 
under  the  warranty,  and  that  the  defendants,  after  fully  satis- 
fying themselves  of  this  fact,  tendered  back  the  machine  to  the 
plaintiffs,  the  plaintiffs  would  have  no  right  to  recover;  but  if 
3rou  should  find  on  the  other  hand  that  after  the  defendants 
found  that  the  machine  would  not  comply  with  the  terms  of  the 
contract,  they  still  continued  to  use  it  in  their  business  for  a 
considerable  period  of  time,  unless  you  find  that  they  had  a 
right  to  do  so  by  permission  of  the  plaintiffs,  they  would  then 
forfeit  their  right  to  return  it,  and  their  only  recourse  would 
be,  then,  in  a  suit  to  recover  the  purchase  money,  to  set  up  the 
warranty  and  to  show  how  much  less  valuable  the  machine  was 
than  its  contract  price,  and  in  such  case  the  sum  then  shown  by 
the  evidence  to  be  the  value  of  the  machine  to  the  defendant, 
or  to  the  0.  B.  Co.,  is  all  the  plaintiffs  could  recover,  and  with 
interest  from  that  time. 

I  will  say  that  in  case  you  should  find  that  the  machine  did 
not  comply  with  the  terms  of  the  contract,  and  you  should 
further  find  that  B.  &  Co.,  or  the  0.  B.  Co.,  acted  with  due 
promptness  in  tendering  it  back,  that  in  such  case  if  you  should 


SALES WARRANTY.  2069 

find  such  a  state  of  facts  to  exist  from  the  testimony,  R.  &  Co. 
would  be  entitled  to  recover  the  amount  of  commission,  or 
amount  that  they  would  be  entitled  to  receive  on  the  machine 
if  it  had  been  kept  by  the  0.  B.  Co.,  and  also  the  amount  of  the 
expense  they  Avere  put  to.1 

iDwyer,  J.,  in  The  Brownell  &  Co.  r.   William  T.  Towers.     Dismissed    in 
supreme  court. 

Sec.  2265.    Acceptance  and  continued  use  of  thing  sold  after 
knowledge  that  it  will  not  work. 

But  if  after  the  lapse  of  such  reasonable  time  the  defendant 
had  the  knowledge  that  the  machine  could  not  perform  the  stipu- 
lations of  the  contract,  or  reasonably  ought  to  have  had  such 
knowledge,  though  it  may  have  given  plaintiff  notice  to  remove 
the  same,  and  that  the  defendant  would  not  accept  the  same  as 
performance  of  the  contract,  yet  if  the  defendant  continued  to 
use  and  operate  the  same  and  treated  the  machine  as  its  own, 
it  would  be  liable  to  plaintiff  to  pay  therefor  the  actual  value 
of  the  machine  in  the  condition  it  was  when  finally  accepted 
by  the  defendant,  considering  its  capacity  to  perform  or  qo1  i<> 
perform  the  work  stipulated  for  in  the  contract,  not  to  exceed 
the  contract  price  for  the  machine.1 

But  if  you  find  that  the  machine  was  not  worth  as  much  as 
the  cash  payment  and  the  note  paid,  then  the  defendanl  would 
be  entitled  to  recoup  the  difference  between  the  amount  of  the 
cash  and  note  paid,  and  the  value  of  the  machine  so  t'uund  by 
you;  but  this  instruction  must  be  understood  as  only  applying 
in  case  you  find  the  machine  to  be  less  in  value  than  the  amounl 
of  the  moneys  actually  paid,  that  is.  the  cash  paymenl  and  the 
amount  paid  on  the  first  note  becoming  due.a 

i  Should  it  not  have  been  charged  thai  the  value  of  the  property  :i  -  it 
would  have  been  if  made  up  to  tin-  guaranty  less  the  difference 
of  that  value  and  what  it  was  actually  worth  as  it  woe  No, 
because  there  was  no  evidence  offered  to  charge  thai  the  contract 
price  was  not  the  true  value  of  <!'<•  property  guaranteed  t"  be 
delivered,  which  price  is  presumed  <<>  I"-  <!"•  value  "f  the  propt 
in  the  absence  of  allegations  and  proof  to  tin-  contrary. 

zVoris,  J.,   in   The  Brownell   Co.   v.   The  J.   C.   McNeil    Co.,   Summit    I 
Com.  Pleas. 


2070  INSTRUCTIONS   TO   JURY. 

Sec.  2266.    FraAid   and  deceit  in   sale   of   property — Parties 
dealing-  on  an  equality. 

Deceit  or  fraud  in  business  transactions  consists  in  fraudulent 
representations  of  contrivances  by  which  one  person  deceives 
another  who  has  a  right  to  rely  upon  such  representation,  or  has 
no  means  of  detecting  such  fraud.  It  is  the  law  that  fraud 
vitiates  every  contract.  There  is  no  exception  to  this  rule. 
When  fraud  is  proven  to  have  promoted  the  making  of  a  con- 
tract, it  is  void  and  can  not  be  enforced.  Fraud  taints  every 
transaction  which  is  the  result  of  it.  But  fraudulent  representa- 
tions in  the  sale  of  property  will  not  in  themselves  always  con- 
stitute deceit  which  will  be  the  subject  of  an  action  for  damages. 

Where  parties  deal  with  each  other  on  a  footing  of  equality, 
there  must  be  some  existing  circumstances  or  some  means  used 
calculated  to  prevent  the  detection  of  falsehood  or  fraud,  and 
impose  upon  a  purchaser  of  ordinary  intelligence,  prudence,  and 
eireumspection.  If  the  purchaser  has  full  opportunity  to  exam- 
ine the  property,  and  can  easily  and  readily  ascertain  its  quality 
and  value  by  inspection,  and  he  neglects  to  do  so,  then  any 
injury  which  he  may  sustain  by  such  negligence  is  the  result 
of  his  own  folly,  and  he  can  have  no  relief  at  law,  unless  the 
representation  was  of  such  a  character  as  to  mislead  a  prudent 
person  or  put  him  off  his  guard.  The  law  wisely  and  justly 
presumes  in  such  a  ease  that  a  purchaser  will  take  care  of  his 
own  interests,  and  that,  when  he  distrusts  himself,  his  own  judg- 
ment and  shrewdness,  he  will  protect  himself  from  imposition.1 
i  Pugh,  J.,  in  Spencer  v.  King,  Franklin  Co.  Com.  Pleas. 

Sec.  2267.     Same  continued — Opportunity  of  inspection. 

When  the  purchaser  has  a  full  opportunity  to  inspect  the 
property,  but  fails  to  do  so,  and  the  representations  were  not 
such  as  should  have  misled  him,  he  has  no  right  to  complain 
if  the  property  sold  does  not  measure  up  to  the  representations 
of  the  seller.1 
1  Pugh,  J.,  in  Spencer  r.  King,  Franklin  Co.  Com.  Pleas. 


SALES — WARRANTY.  2071 

Sec.  2208.    Same  continued— What  commendations  may  be 
made — Dealers  talk. 

It  is  well  known  that,  in  the  course  of  trade,  vendors  will 
speak  in  terms  of  high  commendation  of  the  property  which 
they  are  offering  for  sale.  Such  "dealing  talk"  is  not  deemed 
in  law  as  fraudulent,  unless  accompanied  with  some  artifice 
calculated  to  deceive  the  purchaser  and  throw  him  off  his  guard, 
or  some  concealment  of  intrinsic  defects  not  easily  discoverable 
by  reasonable  diligence  and  care.1 
i  Pugh,  J.,  in  Spencer  v.  King,  Franklin  Co.  Com.  Pleas. 

Sec.  2269.    Expression   of  opinion  by   seller  as   to   amount, 
value  and  quality. 

The  opinion  which  the  seller  of  property  expresses  concern- 
ing the  amount,  value,  and  quality  is  frequently  asked  for  and 
given  at  sales,  and  is  never  ground  for  a  law  suit  when  it  proves 
to  be  untrue,  if  it  was  only  an  opinion  and  was  honestly  given. 

But  if  the  statement  of  the  value  was  more  than  an  opinion, 
if  it  was  an  affirmation  of  a  specific  material  fact,  it'  it  was 
deliberately  made  by  the  seller  who  had  superior  knowledge  in 
regard  to  it,  and  if  it  was  acted  upon  by  the  buyer,  and  if  it 
was  known  to  the  seller  to  be  false,  it  may  he  deemed  fraudulent 
and  a  sufficient  basis  for  an  action.  The  rule  of  law  applicable 
to  this  matter  is  this:  The  property  in  question*  was  situated 
in  another  state  not  accessible  to  the  observation  and  judgmenl 
of  either  party.  If  the  defendant  had  knowledge  of  its  value 
superior  to  the  other  party,  if  he  deliberately  represented  that 

it  was  worth  dollars  per  acre,  and  that   w:is  more  than 

the  general  praise  or  puffing  which  sellers  are  liable  t<»  indulge 
in,  if  he  knew  it  was  false,  and  if  the  plaintiff,  acting  upon 
such  representations,  purchased  the  property,  it  is  competent 
for  you  to  infer  that  it  was  a  fraudulent  representation,  unless 
you  further  conclude  that  it  was  net  material.  If  you  find  that 
the  representations  as  to  the  value  of  the  land  were  only  opinions, 
only  trade  talk,  then  the  plaintiff  can  not  recover,  aotwithstand 


2072  INSTRUCTIONS   TO   JURY. 

ing  the  opinions  were  not  well  founded.     The  law  does  not  assist 
the  purchaser  who  pins  his  faith  to  the   exaggeration  of  the 
value  of  property  made  by  sellers  of  it.1 
i  Pugh,  J.,  in  Spencer  v.  King,  Franklin  Co.  Com.  Pleas. 

Sec.  2270.     Breach  of  warranty  in  sale  of  horse. 

1.  Express  warranty  defined. 

2.  Statement  of  opinion. 

3.  Opportunity  for  inspection  and  examination. 

4.  Measure  of  damages. 

1.  Express  wa/rranty  defined.  Now,  gentlemen,  it  will  be  nec- 
essary for  the  court  to  define  to  you  what"  is  meant  by  an  express 
warranty,  because  it  is  an  express  warranty  that  the  plaintiff 
here  relies  upon  as  the  ground  for  his  recovery,  and  a  breach 
of  that  warranty.  I  will,  therefore,  state  to  you  the  law  on  the 
subject  of  warranty. 

Any  distinct  affirmation  or  assertion  of  the  quality  or  char- 
acter of  the  thing  sold  made  by  the  sellrr  during  the  negotiations 
for  the  sale  which  it  may  reasonably  be  supposed  was  intended 
to  induce  the  purchaser  and  was  relied  upon  by  the  purchaser, 
will  be  regarded  as  a  warranty,  unless  accompanied  by  a  state- 
ment that  it  is  not  intended  as  such. 

2.  Slat<  mi  nt  df  opinion.  A  mere  statement  by  a  seller  of  his 
opinion,  which  falls  short  of  being  a  positive  affirmation  of  a 
t;ut  upon  a  matter  about  which  the  purchaser  is  to  exercise  his 
own  judgment,  does  not  amount  to  a  warranty.  The  test  as  to 
whether  or  not  the  language  used  is  a  mere  expression  of  opinion, 
or  a  warranty,  is  whether  it  purported  to  state  a  fact  upon  which 
it  may  fairly  be  presumed  the  seller  expected  the  buyer  to  rely, 
and  upon  which  a  buyer  would  ordinarily  rely,  and  upon  which 
he  did  rely.  The  mere  fact  that  the  purchaser  has  an  oppor- 
tunity to  inspect  the  property  sold,  will  not  relieve  the  seller 
if  there  was  a  specific  warranty  covering  the  defect  complained 
of,  but  the  opportunity  to  make  an  examination  is  to  be  con- 
sidered always  in  determining  whether  the  statement  constituted 
a  warranty. 


SALES — WARRANTY.  2073 

3.  Opportunity  for  inspection  and  examination.  Where  a 
full  and  fair  opportunity  to  inspect  and  examine  the  thing  sold 
is  afforded  to  the  buyer,  the  rule  that  the  purchaser  must  beware 
or  that  he  purchases  at  his  risk  applies  as  to  all  defects  which 
a  reasonable  inspection  and  examination  would  have  disclosed, 
unless  they  are  covered  by  clear  and  express  warranties.  The 
rule  is  where  a  full  and  fair  opportunity  to  examine  and  inspect 
the  goods  sold  is  afforded  to  the  buyer,  that  he  may  cheat  himself 
if  he  sees  fit,  but  the  seller  must  not  actively  assist  him  to  do  so 
or  throw  obstructions  in  the  way  of  a  full  and  fair  opportunity 
to  inspect  and  examine. 

When  the  seller  is  guilty  of  fraud  by  concealing  the  defect, 
or  the  defect  is  really  not  discoverable  by  inspection,  the  fact 
of  an  inspection  is  not  material,  and  it  is  always  proper  to 
inquire  whether  the  buyer's  failure  to  inspect  was  or  was  not 
due  to  the  seller's  persuasion  or  assurance.  When  the  declara- 
tions of  the  seller  as  to  the  quality  of  the  article  sold  arc  clear 
and  explicit  so  that  there  is  a  clear  warranty  of  quality,  the 
buyer  has  a  right  to  rely  on  his,  and  such  warranty  is  not  af- 
fected by  the  failure  to  inspect  and  examine  before  making  the 
purchase.  The  liability  of  a  seller  arises  from  his  own  mis- 
representation and  is  not  affected  by  the  want  of  diligence  of 
the  buyer  in  the  matter  of  inspection,  if  he  relied  upon  the 
representations.  But  defects  which  are  plain  and  obvious  to 
the  purchaser,  or  which  were  known  to  the  purchaser  at  the 
time  of  the  sale,  are  not  covered  by  a  warranty  unless  they  are 
expressly  referred  to  as  being  included  in  the  warranty. 

Applying  the  rule  to  this  case,  if  the  plaintiff  knew  that  the 
mare  was  wind  broken,  then  that  defect  would  not  he  covered 
by  the  warranty. 

The  same  is  true  as  to  any  defects  in  either  of  the  horses  if 
you  find  there  was  any,  which  you  may  find  from  the  evidence 
was  known  to  the  plaintiff  at  the  time  of  the  purchase  of  the 
horses  by  him.  A  warranty  does  not  cover  such  defects  as  a 
casual  inspection  or  observation  will  disclose  to  the  buyer;  that, 
is,  those  defects  which  are  plain  or  open  and  obvious  to  every 
person. 


2074  INSTRUCTIONS   TO   JURY. 

When  the  property  is  before  the  buyer,  he  is  presumed  to 
make  some  use  of  his  senses,  and  therefore,  he  is  held  to  have 
purchased  with  knowledge  of  the  defects  which  would  be  patent 
to  an  ordinary  observer  in  the  same  situation.  But,  of  course, 
this  rule  does  not  apply  if  the  seller  used  artifice  to  conceal  and 
does  conceal  defects  which  would  otherwise  be  obvious  to  the 
purchaser.  If  the  seller  does  anything  to  divert  the  attention 
of  the  purchaser  from  defects,  or  to  mislead  him  as  to  defects 
which  would  ordinarily  be  obvious  to  an  ordinary  observer,  the 
rule  which  excludes  obvious  defects  from  a  warranty  will  not  be 
applicable. 

In  the  absence  of  an  express  agreement,  a  warranty  of  the 
condition  of  property  sold  relates  to  the  time  of  the  sale.  So 
that  if  there  was  a  warranty  in  this  case,  it  related  to  the  time 
of  the  sale  and  could  not  be  made  to  apply  to  the  condition  of 
the  horses  in  the  future.  The  question  is,  did  they  come  up  to 
the  warranty  at  the  time  of  the  sale,  if  you  find  there  was  a 
warranty.  If  they  did,  that  is.  if  the  horses  were  sound  when 
sold,  then  there  was  no  breach  of  warranty  because  afterwards 
the  horses  may  have  become  unsound.  But  if  the  horses  were 
warranted  to  be  sound,  and  you  find  that  they  were  not  sound, 
or  that  either  of  them  was  not  sound  at  the  time  of  the  sale, 
then  there  would  be  a  breach  of  the  warranty  unless  you  find 
that  the  only  defects  which  they  had  were  known  to  the  plain- 
tiff, or  were  open  and  obvious.  Of  course,  you  can  only  consider 
such  defects  as  are  alleged  in  the  petition,  if  any  are  shown  to 
have  existed  in  the  horses  at  the  time  of  the  sale. 

4.  Measure  of  damages.  If  you  find  that  the  plaintiff  is 
entitled  to  recover,  the  measure  of  his  damages  will  be  the  differ- 
ence between  what  these  horses  would  have  been  worth  if  they 
had  been  as  they  were  warranted  to  be,  and  what  they  were 
actually  worth  as  they  in  fact  were. 

In  addition  to  this,  the  defendant  would  be  liable  for  breach 
of  warranty  for  the  reasonable  expenses  of  keeping  and  main- 
taining the  horses  up  to  the  time  when  the  plaintiff  discovered 
they  were  unsound,  and  if  he  offered  to  return  them  to  the  de- 


SALES — WARRANTY.  2075 

fendant  and  to  rescind  the  contract  and  the  defendant  refused 
to  rescind  and  take  hack  the  horses,  then  the  plaintiff  will  be 
entitled  to  recover  for  the  reasonable  expense  of  keeping  the 
horses  for  a  reasonable  time  to  effect  a  sale.  And  what  would 
be  a  reasonable  time  to  effect  a  sale  is  a  question  of  Eacl  for  the 
jury  to  determine  from  all  the  evidence  before  you.  And  what 
the  reasonable  cost  of  keeping  the  horses  was  at  that  time  is  also 
a  question  of  fact  to  be  determined  by  you  from  all  the  evidence.1 
i  Gould  v.  Potter,  Court  of  Com.  Pleas,  Franklin  Co.,  0.     Bigger,  J. 


CHAPTER   CXXXIY. 
STATUTES  OF  LIMITATIONS. 

SEC.  SEC. 

2270a.  Revival  of  debt  by  promise.        2272.  Limitation   upon   an    account, 
2271.  New  promise  to  be  in  writing. 

Sec.  2270a.     Revival  of  debt  by  promise. 

"The  promise  by  which  a  discharged  debt  is  revived  must 
be  in  writing,  clear,  distinct,  and  unequivocal.  There  must  be 
an  expression  by  the  defendant  of  a  clear  intention  to  bind  him- 
self to  the  payment  of  the  debt.  The  new  promise  must  be  dis- 
tinct, unambiguous,  and  certain.  The  expression  of  an  inten- 
tion to  pay  the  debt  is  not  sufficient.  There  must  be  a  promise 
before  the  debtor  is  bound.  An  intention  is  but  the  purpose  a 
man  forms  in  his  own  mind ;  a  promise  is  an  express  undertak- 
ing, or  agreement,  to  carry  that  purpose  into  effect,  and  must 
be  express  in  contradistinction  to  a  promise  implied  from  an 
acknowledgment  of  the  justness  or  existence  of  the  debt."1 
iShockley  v.   Mills,  71   Ind.  292. 

Sec.  2271.     New  promise  to  be  in  writing. 

"The  jury,  in  order  to  take  the  case  out  of  the  statute  of 
limitations  and  entitle  the  plaintiff  to  recover,  must  find  from 

the  testimony  that  the  defendant  has,  within  the  last  

years  before  the  commencement  of  this  action,  made  his  promise 
in  writing  to  pay  said  note  (or  whatever  it  may  be),  or  that  he 
has  actually  paid  thereon  some  portion  of  the  principal  or  inter- 
est thereon  within  the  time  aforesaid."1 
i  Bridgetown  v.  Jones,  34  Mo.  472. 

Sec.  2272.     Limitation  upon  an  account. 

The  court  further  says  to  you  as  a  matter  of  law,  that  where 
the  statute  of  limitations  is  set  up  against  an  account,  each  item 
2076 


STATUTES  OF  LIMITATIONS.  2077 

of  the  account  is  barred  in  six  years  after  the  right  of  action 
accrued  thereon,  unless  it  is  taken  out  of  the  statute  on  sum.' 
special  ground. 

Evidence  has  been  given  tending  to  show  the  dates  when  the 
various  items  of  the  defendant's  account  accrued,  and  if  you 
find  from  the  evidence  in  the  case  that  any  or  all  the  it 'ins  <>t' 
such  account  accrued  more  than  six  years  before  the  commence- 
ment of  this  suit,  then,  in  order  to  prevent  the  statute  <»t'  limita- 
tions running  against  such  items  of  account,  the  defendant,  must 
show  by  a  preponderance  of  the  evidence  in  the  ca.se  that  such 
items  of  account  were  made  as  payments  upon  the  note  in  ques- 
tion, and  was  so  understood  by  the  parties  at  the  time;  and.  if 
you  find  that  these  items  of  account  were  not  made  as  payments 
on  the  note,  was  not  intended  to  be  such  by  the  parties  at  the 
time,  the  account  was  made  and  the  goods  furnished,  then  they 
would  not  be  credits  upon  the  account,  and  all  items  in  de- 
fendant's said  account  which  accrued  more  than  six  years  before 
the  commencement  of  this  action  would  be  barred  by  the  statute 
of  limitations,  unless,  as  I  have  said  to  you,  that  when  they  were 
furnished  to  the  plaintiff's  decedent  they  were  to  be  as  credits 
upon  the  note,  and,  if  they  were,  they  should  be  allowed  by  you.1 
i  Gillmer,  J.,  in  McGaughey,  Admr.,  v.  Cramer,  Trumbull  Co.  Com.   Pleas. 


CHAPTER   CXXXV. 
STREET   RAILWAYS. 

Passengers,  Pedestrians,  Vehicles. 


SEC. 

2273. 

2274. 


2275. 


2276. 


2277. 

2278. 

2279. 

2280. 

2281. 

2282. 
2283. 

2284. 

2285, 


SEC. 

High  degree  of  care   required       2286. 
of  common  carrier. 

Company      owes      utmost     or       2287. 
highest  degree  of  care  to 
passenger. 

Duty  of,  as  common  carriers 

and    as    to    cars    and    appli-       2288. 

ances. 

Railway  company  not  an  in- 
surer —  Bound  not  to 
expose  passenger  to  2289. 
hazards — Incidental  haz- 
ards assumed  by  pas- 
senger. 2290. 

Relation  of  passenger  created 
on   acceptance  of  fare. 

Company  bound   for  acts  and       2291. 
improper  conduct  of  em- 
ployes. 

Acceptance  of  person  as  pas- 
senger creates  relation.  2292. 

Relation    of    passenger   ceases 

when     he      has      safely       2293. 
lighted  on  the  street. 

Starting  car  before  passenger 
seated. 

Injury    while  boarding  car.  2294. 

Negligence     in     boarding    car 
while    in    motion. 

Boarding  car  while  in  motion 

— Another  form.  2295. 

Injury  to  one  who  claims  to 
have  attempted  to  board 
car  at  crossing — Where  2296. 
defense  is  that  the  at- 
tempt was  to  board  while  2297. 
car  moving  between 
streets — A   short  charge. 

2078 


Contributory  negligence  in 
boarding  car. 

Duty  to  stop  at  usual  stop- 
ping places  —  Passenger 
on  signaling  attempting 
to  board  before  it  stops. 

Duty  to  stop  car  long  enough 
to  afford  passenger  rea- 
sonable opportunity  to 
alight. 

Duty  to  assist  passenger  in 
alighting — Question  for 
j>'ry. 

Injury  to  passenger  while 
leaving  car  by  being 
thrown  from  car. 

Duty  to  stop  car  when  desired 
stop  communicated  to 
conductor  on  boarding 
car. 

Injury  to  passenger  while 
alighting  from  car. 

Stopping  cars  for  passengers 
to  alight — Duty  of  con- 
ductor as  to  passenger 
alighting. 

Injury  while  alighting  from 
car  by  catching  clothing 
on  car — Duty  of  pas- 
senger and  company. 

Ejection  of  passengers  for 
refusal  to  pay  fare — 
Transfer  ticket. 

Damages  for  wrongful  eject- 
ment of  passenger. 

Duty  of  railway  to  travelers 
in  streets. 


STREET  RAILWAYS. 


2071) 


SEC. 
2298. 

2299. 

2300. 
2301. 

2302. 


2303. 
2304. 

2305. 

2306. 
2307. 


2308. 

2309. 

2310. 
2311. 


Duty  to  use  ordinary  care  to 
pedestrian. 

When  motorraan  may  assume 
that  pedestrian  will  get 
out  of  danger. 

Pedestrian  may  assume  motor- 
man  will  use  due  care. 

Ordinary  care  required  of 
person  about  to  cross 
track   at  street  crossing. 

Injury  to  person  on  track — 
Duty  of  motorman — May 
presume  pedestrian  will 
be  prudent  —  Plaintiff 
may  presume  company 
will  not  be  negligent. 

Relative  rights  and  duties  of 
pedestrians  and  street 
cars  in  streets. 

Duty  of  employers  when  car 
crossing  street  intersec- 
tion where  car  on  oppo- 
site track  discharging 
passengers. 

Duty  in  avoiding  injury  to 
children,  apparently  in- 
tending to  cross  street. 

Duty  of  parents  in  permitting 
children  to  go  in  streets. 
Injury  to  conductor  by  being 
struck  by  telephone  pole 
while  walking  along  run- 
ning board  of  car.  [See 
other  subject  headings  in 
text.] 

Injury  to  passenger  while 
assisting  driver  of  street 
car. 

Bound  by  acts  of  conductor 
and  motorman  in  scope 
of  employment. 

Reciprocal  rights  of  vehicles 
and  street  cars. 

Duty  of  driver  of  vehicle  as 
to  looking  before  cross- 
ing. 


2312.  Duty  of  driver  to  stop  vehicle 

before  crossing  track 
when  car  approaching, 
when. 

2313.  Collision  between   vehicle   and 

street  car  at  crossing. 
[See  further  headings  in 

text.  | 

2314.  Injury  to  driver  of  vehicle  at 

street    crossing. 

1.  Relative    rights    of    driver 

of  vehicle  and   streel    car. 

2.  Relative  duties  of  each. 

3.  When    driver    may    under- 

take to  cross  track— His 
duty. 

4.  Conclusions  by   jury  as  to 

conduct  of  plaintiff. 

5.  Duty  of  company   to  per- 

sons crossing  streets  and 
track  as  to  speed,  control 
of  car  and  signals. 

6.  Conclusion    of   jurj    as   to 

conduct    of   defendant. 

7.  Concurrent    negligence    of 

plaint  ill'. 

8.  Proximate  cause. 

9.  Directions  as  to  verdict. 
10.  Traffic  ordinance. 

2315.  Injury  to  passenger   in   hired 

automobile  from  collision 
between  street  car  and 
automobile  —  By  joint 
negligence  of  both  Ac- 
tion against   both. 

1.  statement    of     negligence 

charged. 

2.  Neither     defendant      liable 

for  negligence  of  "t  her 
Both  liable  if  their  eon 

current    negligen au-e 

in  ju i \ . 
:t.    Plaintiff  must,  be  free  from 

negligence     R  u  Is     i  d  d 

burden  of  proof. 


2080 


INSTRUCTIONS   TO    JURY. 


5. 


6. 


10. 


11. 


Negligenc  e — Duty  of 
motorman  and  driver  of 
automobile. 

Reciprocal  rights  and  du- 
ties of  each. 

Same — Duty  as  to  dis- 
covery of  intent  of  auto 
driver  to  cross  street. 

Directions  as  to  verdict. 

Duty  of  driver  of  auto. 

Negligence  of  auto  driver 
not  imputable  to  plain- 
tiff. 

Ordinance  as  to  operation 
of  cars  and  autos. 

Statute  as  to  speed  of 
auto. 

12.  Summary  and  direction  as 

to   verdict. 

13.  Damages. 

2316.  Street  car  colliding  with  auto- 
mobile stalled  on  track 
on  dark  night. 

1.  The   charge   of   negligence. 

2.  Duty  of   railway   company 

when  automobile  stalled 
on  track  on  dark  night. 

Same — Duty  on  discovery 
of  auto  on  track  to  use 
ordinary   care. 

Duty  of  person  in  charge 
of  automobile. 

If  auto  driver  negligent — 
To  bold  railway  com- 
pany, it  must  be  guilty 
of  new  and  independent 
act  of  negligence. 


3. 


SEC. 

6.  Speed   of   car — Opinion   of 

witnesses  to  be  received 
with   caution. 

7.  Form   of   verdict. 

2317.  Duty  of  motorman  on  meet- 
ing horse  coming  in  oppo- 
site direction  becoming 
frightened. 

2:ilS.  Duty  of  driver  of  wagon  in 
crossing  track  at  street 
crossing — Ordinary  care 
— Look  and  listen. 

2319.  Duty     of     driver     of     vehicle 

about  to  cross  track  at 
street  crossing  —  Ordi- 
nary care  required. 

2320.  Duty    of    vehicle    arriving    at 

street  crossing  in  ad- 
vance of  street  car — Has 
prior  right  to  cross. 

2321.  Relative   rights   of   street  car 

and  driver  of  vehicle  at 
street  crossing. 

2322.  Duty    of    motorman    to    dis- 

cover vehicle  about  to 
cross  track  and  avoid 
injury. 

2323.  Contributory      negligence      of 

children  at  crossing. 

2324.  Presumption      of      negligence 

from  collision  —  Burden 
cast  on  defendant. 

2325.  Prima   facie    negligence    from 

collision. 

2326.  When    person    signals    car    in- 

tending to  board  it  is 
to  be  treated  as   passen- 


ger. 

Sec.  2273.  High  degree  of  care  required  of  common  carrier. 
The  law  requires  a  high  degree  of  care  on  the  part  of  a  rail- 
way company  toward  a  passenger,  that  it.  will  carry  him  (or 
her)  to  destination.  This  does  not  mean  the  highest  degree 
of  care,  the  highest  possible  degree  of  care.  The  measure  of 
high  degree  of  care  required  of  defendant  in  this  case  means 
as  high  a  degree  of  care  as  is  reasonably  consistent  with  the 
means  at  hand  for  the  management  of  its  car.  The  law  requires 
under  all  the  circumstances  disclosed  in  the  evidence  in  the  case 


STREET  RAILWAYS.  2081 

would  require  the  railroad  company  in  the  management  of  its 
car,  that  its  agents,  servants  and  its  employes,  the  motorman 
and  conductor,  should  exercise  reasonable  care,  such  degree  of 
care  as  an  ordinarily  prudent  person  would  have  exercised  under 
all  the  facts  and  circumstances. 

Corporations  act  through  their  agents.      Therefore  what   the 
motorman  or  conductor  did  on  the  day  in  question  with  refer- 
ence to  running  the  car  in  so  far  as  its  passengers  were  con- 
cerned, would  be  the  act  of  the  defendant  company.1 
i  Booth,  Street  Rys.,  see.  328. 

Sec.  2274.     Company  owes  utmost  or  highest  degree  of  care 
to  passenger. 

In  accepting  the  passenger  for  transportation,  the  defendant 
company  can  not  be  heard  to  say  that  it  is  not  liable  for  the 
injuries  caused  to  the  passenger  by  its  performance,  while  the 
relation  exists,  unless  it  has  exercised,  under  all  the  circum- 
stances, the  highest  degree  of  care  and  prudence  in  its  manage- 
ment, and  in  the  instrumentalities  employed  by  it,  that  prudent 
men  in  like  circumstances  usually  employ,  ami  commensurate 
with  the  hazards  ordinarily  to  be  encountered.  The  rule  re- 
quires that  it  should  do  everything  necessary  to  secure  the  safety 
of  its  passengers,  reasonably  consistent  with  the  business  and 
means  of  conveyance  employed  in  street  railway  carriage. 

The  law  requires  the  utmost  care  and  skill  which  prudent 
men  are  accustomed  to  use  under  similar  circumstances,1  bu1 
the  rule  is  not  to  be  pressed  to  an  extent  which  would  make  the 
conduct  of  the  business  so  expensive  as  to  he  wholly  imprac- 
ticable. But  the  common  carrier  must  do  all  that  any  one  in 
his  position  could  reasonably  do  to  guard  againsl  injury  t..  his 
passenger,  and  to  provide  such  facilities  and  instrumentalities 
as  are  required  for  the  safe  and  prudenl  carriage  of  passengers 
for  pay.  In  the  absence  of  knowledge  to  the  contrary,  if  the 
plaintiff  acted  in  good  faith,  she  was  entitled  t<>  presume  that 

the  defendant  would  not  be  negligenl  in  the  performai of  its 

whole  duty  to  her,  and  that  she   would   not   I sposed   to  any 


2082  INSTRUCTIONS   TO    JURY. 

hazard  that  reasonable  care  and  prudence  coula  fairly  guard 
against.2 

i  7  W.  L.  B.  187. 

2  Voris,  J.,   in  Dussel  v.  Akron  St.  R.   R.   Co.,   Summit  Co.  Com.  Pleas. 

Affirmed   by   circuit  and  supreme  court. 
Company  bound  to  exercise  the  highest  care  and  foresight  for  the  safety 

of    its    passengers    consistent    with    practical    operation    of    road. 

Traction  Co.  v.  Yarus,  221   111.  641,  77  N.  E.    1129;    Chicago    St. 

R.  Co.  v.  Palkey,  203  111.  225;  Booth,  Street  Rys.,  sec.  328. 

Sec.  2275.    Duty  of,  as  common  carriers  and  as  to  cars  and 
appliances. 

A  common  carrier  of  passengers  on  street  car  is  required  to 
exercise  the  highest  degree  of  skill  and  care  which  may  reason- 
ably be  expected  of  intelligent  and  prudent  persons  engaged 
in  that  business,  in  view  of  the  instrumentalities  employed,  and 
the  dangers  naturally  to  be  apprehended.  The  carrier  is  not 
an  insurer  of  the  safety  of  its  passengers,  and  is  not  bound 
absolutely  and  at  all  events  to  carry  them  safely  and  without 
injury.  They  take  the  risks  of  their  own  carelessness  of  dangers 
that'  could  not  have  been  averted  by  the  carrier  by  the  exercise 
of  the  degree  of  care  that  the  law  demands. 

A  carrier  is  bound  to  furnish  and  maintain  safe  cars  and 
appliances,  whether  old  or  new,  but  the  employment  of  the 
appliances  which  are  in  universal  and  common  use  can  not  be 
said  to  be  negligence,  nor  can  it  be  said  that  the  mode  of  con- 
struction is  defective  and  not  reasonably  safe,  when  the  danger 
is  dependent  upon  conditions  which  are  the  result  of  the  negli- 
gent conduct  of  the  passenger  or  the  company's  servants. 

A  carrier  will  not  be  liable  for  injuries  caused  by  the  defect 
which  is  of  such  a  character  that  no  prudent  man  would  antici- 
pate danger  from  it,  and  so  obscure  as  to  escape  observation 
during  a  careful  daily  inspection,  and  where  there  is  nothing 
to  show  how  long  the  defect  has  existed  before  the  time  of  the 
accident. 

The  defendant  is  not  guilty  of  a  breach  of  its  duty,  if  it- 
secures  the  best  appliances  for  the  conduct,  control,  and  safety 


STREET  RAILWAYS.  2083 

of  its  ears,  after  due  investigation,  and  subjects  the  same  to 
the  best  tests,  and  has  all  the  machinery  of  its  cars  constantly 
and  thoroughly  examined;  and  the  fact  that  one  of  the  appli- 
ances fails  to  perform  its  usual  duty  going  down  a  hill  does  not 
alone  prove  negligence  on  the  part  of  the  defendant  company, 
provided  the  company  has  properly  inspected  and  examined 
the  machinery  and  tested  it  before  use.  The  criterion  of  uegli- 
gence  in  such  cases  is  not  whether  the  particular  defect  whirl, 
was  the  cause  of  the  injury  could  possibly  have  been  detected 
by  the  use  of  scientific  means  of  investigation,  but  whether  the 
defect  ought  to  have  been  observed  practically  and  by  the  use  of 
ordinary  and  reasonable  care.  *  *  *  It  was  the  duty  of  tin- 
defendant  company,  before  attempting  to  descend  the  hill  in 
question  with  its  car,  to  know  that  its  tracks  over  which  the  car 
had  to  run,  and  its  appliances  and  machinery  for  stopping  the 
same  were  in  good  order  and  properly  adjusted.1 

i  Gillmer,  J.,   in  Klipp   v.  Trumbull   Electric   Railroad   Co.,  Trumbull  Co. 
Com.  Pleas.     Booth  on  St.  Rys.,  sec.  332. 

Sec.  2276.  Railway  company  not  an  insurer— Bound  not  to 
expose  passenger  to  hazards — Incidental 
hazards  assumed  by  passenger. 

The  defendant  was  not  the  insurer  of  the  safety  of  the  plain- 
tiff in  taking  passage  upon  its  car,  but  by  accepting  him  as  a 
passenger  it  bound  itself  to  provide  him  with  a  sale  transporta- 
tion to  the  place  of  destination,  and  not  to  expose  him  to  any 
hazards  that  reasonable  care  and  prudence  could  prevenl  ;  ami 
in  taking  passage  upon  the  car  he  took  upon  himself  the  hazards 
incident  to  passenger  transportation  upon  the  defendant's  ear. 
Avhen  properly  managed  only;  this  would  include  getting  on 
and  off  the  cars. 

As  matter  of  public  policy,  the  law  requires  a  strict  perform- 
ance of  the  obligation  assumed  by  the  public  carrier,  to  those 
taking  passage  upon  its  ears.  The  defendanl  can  not  he  heard 
to  say  that  it  is  not  liable  for  the  injury  caused  to  the  passen- 


2084  INSTRUCTIONS   TO    JURY. 

ger  by  its  performance,  while  the  obligation  exists,  unless  it 
has  exercised  under  the  circumstances  that  degree  of  care  and 
prudence  in  its  management  that  prudent  men  in  like  circum- 
stances usually  employ,  and  commensurate  with  the  hazards 
ordinarily  to  be  encountered.  The  rule  requires  that  it  should 
do  everything  necessary  to  secure  the  safety  of  its  passengers, 
reasonably  consistent  with  the  means  and  business  of  the  con- 
veyance employed  in  street  railway  carriage.  The  common 
carrier  must  do  all  that  anyone  in  the  position  could  reasonably 
do  to  guard  against  injury  to  its  passengers  and  to  provide  such 
facilities  as  are  required  for  the  safe  and  prudent  carriage  of 
passengers  for  pay.1 

i  Voris,  J.,  in  Sourek  v.  The  Akron  St.  Ky.  Co.,  Summit  Co.  Com.  Pleas. 
Booth  on  St.  Rye.,  sees.  327,  328. 

Sec.  2277.     Relation  of  passenger  created  on  acceptance  of  fare. 

The  acceptance  of  a  person  as  a  passenger,  and  the  reception 
of  the  usual  fare  would  constitute  the  relation  of  carrier  and 
passenger,  so  that  he  could  not  be  ejected  from  the  cars  of  the 
defendant  against  his  will  during  the  passage  for  which  payment 
had  been  made,  except  for  improper  conduct  on  his  part, 

Sec.  2278.     Company  bound  for  acts  and  improper  conduct  of 
employees. 

The  passenger  rightfully  pursuing  his  ride  on  the  cars  of  the 
defendant  is  entitled  to  be  treated  with  courtesy,  and  may  not 
be  treated  rudely  or  be  subjected  to  insult  by  the  employees  and 
agents  of  the  company  managing  the  ears,  without  incurring 
liability  therefor. 

In  general,  the  passenger  carrier  is  bound  by  the  acts  of  the 
employees  and  agents  in  the  scope  of  their  employment,  and 
must  answer  for  their  negligence,  unskillful,  or  wrongful  per- 
formance in  the  scope  of  such  employment.  In  other  words, 
the  negligence  or  improper  conduct  of  the  conductors  and  other 
employees  of  the  company  managing  the  cars,  in  the  scope  of 


STREET  RAILWAYS.  2085 

their  employment,  is  the  negligence  and  wrongful  acts  of  the 
company,  for  which  it  may  be  held  liable.1 

i  Steffee  v.  The  Akron  St.  R.  R.  Co.,  Summit  Co.  Com.   Pleas.     \,.ris,  .1. 
Duties   of    street   railway   to   its   passengers.     Booth    St.    K\.. 
326,  327,  328.     In  Ohio  the  utmost  degree  of  care  and  skill   is   re 
quired,  7   W.  L.  B.   187,  6  0.  C.  C.   155. 

Sec.  2279.  Acceptance  of  person  as  passenger  creates  relation. 
The  acceptance  of  a  person  as  a  passenger,  and  the  reception 
of  the  usual  fare,  would  constitute  the  relation  of  carrier  and 
passenger  (Booth  on  St.  Rys.,  sec.  326),  so  that  he  could  not 
be  ejected  from  the  cars  of  the  defendant  company  against  Ins 
will  during  the  passage  for  which  payment  had  been  made,  except 
for  improper  conduct  on  his  part.  A  passenger  rightfully  pur- 
suing his  right  on  the  cars  of  the  defendant  is  entitled  to  be 
treated  courteously,  and  may  not  be  treated  rudely,  or  be  sub- 
jected to  insult  by  the  employees  and  agents  of  the  company 
managing  the  cars,  without  incurring  liability  therefor.1 

i  Steffee  v.  The  Akron  Street  Railroad  Co.,  Summit  Co.  Com.  Pleas. 
Voris,  J. 

"The  existence  of  the  relation  depends  largely  upon  the  intention  of  the 
party  at  the  time  he  enters,  or  while  attempting  to  enter."  Booth, 
sec.  326.  He  is  a  passenger  while  in  the  act  of  getting  in  the  car. 
32  Minn.  1,  137  Mass.  210.  The  relation  ceases  when  the  passenger 
steps  from  a  car  upon  the  highway,  139  Mass.  542,  31   X.   E.  391. 

Sec.  2280.     Relation  of  passenger  ceases  when  he  has  safely 
alighted  on  the  street. 

The  jury  is  instructed  that  when  a  passenger  on  a  street  car 
has  safely  alighted  on  the  street  the  relation  of  carrier  and  pas 
senger  is  terminated.1 

iAnn.  Cas.  1912,  B.  p.  863,  note.  Schley  v.  It.  K..  227  Pa.  St.  194, 
136  Am.  St.  906;  Booth  St.  Railways,  sec.  326,  note,  13  and  . 

cited. 

Sec.  2281.     Starting  car  before  passenger  seated. 

The  jury  is  instructed  thai  because  of  tin-  public  demands  of 
rapid  transportation  on  street  ears,  it  is  not  the  duty  of  tin'  OOE 


2086  INSTRUCTIONS   TO   JURY. 

ductor  to  wait  until  a  passenger  is  seated  before  starting  the 
car,  but  on  the  contrary  the  ear  may  be  signaled  to  start  as  soon 
as  the  passenger  is  fully  on  the  car.  The  car  may  be  started 
without  waiting  for  a  passenger  to  reach  a  seat  after  entering 
the  same,  unless  there  is  some  special  and  apparent  reason  for 
doing  otherwise.1 

i  Boston  EL  R.  Co.  v.  Smith,  168  Fed.  62S,  23  L.  R.  A.  (N.S.)  890; 
Ottinger  v.  Railway,  166  -Mich.  106.  131  N.  W.  528,  Ann.  Cas.  1912, 
D.  578  and  cases  cited.  As  to  old  man,  see  Sharp  v.  R.  R.  Co.,  Ill 
La.  395,  35  So.  614,  100  Am.  St.  488;  Birmingham  R.  Co.  v.  Haw- 
kins.   153  Ala.  86,   16  L.  R.   A.    (N.S.)    1077. 

Sec.  2282.     Injury  while  boarding  car. 

1.  Statement  of  claim.  The  claim  of  the  plaintiff  in  this  case 
is:  Thai  the  defendanl  has  no1  exercised  in  and  about  this  matter 
the  highest  degree  of  care  which  was  reasonable  under  all  the 
circumstances,  and  such  as  would  be  expected  of  intelligent  and 
prudent  persons  engaged  in  this  business.  The  plaint  ill'  claims 
that  the  car  came  to  a  stop,  and  that  he  stepped  upon  the  foot- 
board, and  before  he  had  time  to  obtain  a  seat,  the  car,  unex- 
pected to  him,  started;  that  in  so  doing  he  lost  his  balance,  and 
that  he  was  thrown  against  one  of  the  seats  of  the  car  and  in- 
jured. 

The  defendant  claims  that  the  plaintiff  attempted  to  board 
the  car  before  it  came  to  a  stop,  and  in  doing  so  he  received 
the  injury  by  falling  against  one  of  the  seats  of  the  car,  and 
that  the  plaintiff  was  guilty  of  contributory  negligence  in  thus 
attempting  to  board  the  car,  and  in  not  properly  protecting  him- 
self in  getting  on  the  ear  at  the  time  and  the  manner  he  did, 
and  it  claims  that  it  has  exercised  the  highest  degree  of  skill  and 
care  which  was  reasonable  under  all  the  circumstances,  that 
would  be  expected  by  intelligent  and  prudent  persons  engaged  in 
this  business,  and  that,  therefore,  there  should  be  no  recovery. 

2.  Duty  of  passenger  in  hoarding  car.  It  was  the  duty  of 
the  plaintiff  in  boarding,  or  attempting  to  board  the  car,  to 
use  ordinary  care  in  securing  a  seat,  and  if  he  delayed  unneces- 
sarily, and  for  an  unreasonable  time  by  standing  on  the  foot- 


STREET  RAILWAYS.  2087 

board  or  otherwise,  and  so  contributed  to  his  injury,  he  can 
not  recover.  It.  was  not  negligence  as  matter  of  law  for  the 
plaintiff  to  board  the  car  while  it  was  in  motion,  if  you  find 
he  did  so,  yet  if  he  did,  he  assumed  all  the  risks  of  the  ordinary 
and  usual  movements  of  the  car,  if  operated  with  the  utmost  care 
by  the  defendant 's  employees,  and  if  injured  under  such  circum- 
stances, he  can  not  recover. 

It  was  the  duty  of  the  plaintiff  at  all  times  while  boarding 
or  attempting  to  board  the  car,  to  exercise  ordinary  care  and 
to  make  such  use  of  his  hands  and  arms  to  support  himself, 
while  on  the  footboard  and  entering  from  thence  into  the  car, 
by  means  of  the  posts  of  the  car,  or  other  convenient  means  of 
support,  if  such  there  were,  as  a  person  of  ordinary  prudence, 
and  in  the  exercise  of  ordinary  care  under  like  circumstances, 
would  have  exercised ;  and  if  he  failed  to  do  this,  and  so  con- 
tributed to  his  injury,  he  can  not  recover.  The  court  can  not 
say  to  you  that  ordinary  care  required  him  to  take  hold  of  the 
posts  with  both  hands,  or  with  one  hand,  or  whether,  under  the 
circumstances,  it  required  him  to  take  hold  of  the  posts  at  all 
or  not.  The  question  is  for  the  jury  to  decide,  whether,  under 
all  the  circumstances  of  this  case,  plaintiff  acted  as  an  ordinarily 
prudent  person  would  have  acted  under  the  same  or  similar 
circumstances  in  attempting  to  board  this  car.  And  tins  is 
also  true  of  the  defendant  company.  The  question  is  left  for 
you  to  determine  whether  or  not  the  defendant  company  exer- 
cised the  utmost  care  or  the  highest  degree  of  care  in  carrying 
this  passenger. 

If  you  find  the  plaintiff  got  on  the  footboard  of  the  car  while 

it  was  at  a  standstill,  and  that,  while  he  was  standing  on  the 

footboard,  and  before  he  secured  a  seat,  the  motorman  in  charge 

of  the  car  started,  and  in  so  doing  exercised  the  utmost  degree 

of  care,  starting  it  without  any  sudden  jerk,  then  the  court  says 

to  you  that  the  defendant  was  not  guilty  of  negligence,  and  your 

verdict  must  be  for  the  defendant.1 

i  Gillmer,  J.,  in  Gee  v.  Trumbull  Electric  R.  R.  Co.,  Trumbull   Co.  Com. 
Pleas.     Booth  on  St.  Rys.,  sec.  348. 


2088  INSTRUCTIONS   TO   JURY. 

Sec.  2283.     Negligence  in  boarding  car  while  in  motion. 

. 

If  the  car  was  slowed  up,  so  that  it  would  be  reasonably  pru- 
dent for  the  plaintiff  to  attempt  to  get  on,  and  in  the  exercise 
of  reasonable  prudence  and  care  under  the  circumstances,  he  at- 
tempted to  get  on  and  failed,  without  fault  on  his  part,  he  would 
not  therefore  be  charged  with  contributory  negligence;  but  if 
he  did  not  so  act  prudently  and  carefully,  under  the  circum- 
stances then  known  to  him,  in  attempting  to  get  on  while  the 
car  was  yet  in  motion,  then  he  would  be  held  to  have  taken  the 
risks  of  the  want  of  such  prudence  and  care,  if  voluntarily 
undertaken  and  encountered  by  him.     * 

We  can  not  say  to  you  as  a  matter  of  law  whether  or  not  it 
was  negligence  for  plaintiff  to  attempt  to  board  the  car  while 
it  was  in  motion,  if  you  find  it  to  have  been  in  motion  from  the 
evidence,  or  with  one  of  his  hands  or  an  arm  encumbered  by  his 
dinner-basket,  but  we  leave  it  to  be  determined  by  you,  from 
all  the  circumstances  given  you  in  the  evidence,  whether  he  was 
or  was  not  guilty  of  contributory  negligence  in  attempting  to 
get  on  the  car,  as  the  evidence  shows  he  did. 

But  if  the  car  was  not  in  motion,  but  was  stopped  to  enable 
him  to  get  on  the  car,  and,  while  he  was  so  attempting  to  get- 
on,  it  was  suddenly  started,  and  before  plaintiff  had  reasonable 
time  to  get  on  board,  and  the  plaintiff  was  thereby  injured, 
without  his  fault,  then  we  say  to  you  that  the  plaintiff  would 
be  entitled  to  recover  therefor,  if  in  other  respects  he  is  entitled 
to  recover  under  these  instructions  given  you.1 

i  Voris,  J.,  in  Sourek  v.  Akron  St.  Ry.  Co.,  Summit  Co.  Com.  Pleas.     Booth 
on    St.    Rys.,   sec.   336. 

Sec.  2284.     Boarding  car  while  in  motion — Another  form. 

It  is  not  negligence,  as  matter  of  law,  for  one  to  attempt  to 
boird  such  a  car  as  that  in  question  \rhih  in  motion,  but  the 
question  is  one  for  the  jury  to  decide  from  the  circumstances  as 
it  finds  them  to  be  from  the  evidence.  If  the  plaintiff  was  at  the 
crossing  aforesaid,  and  signaled  the  car,  so  that  it  was  or  should 
have  been  seen,  and  the  speed  of  the  car  was  thereupon  slack- 


STREET  RAILWAYS.  2089 

ened,  so  that  when  it  reached  him  the  ear  Mas  going  so  slowly 
that  plaintiff  was  justified  as  a  man  of  common  prudence  in 
endeavoring  to  enter  it,  he  is  entitled  to  recover,  although  the 
car  did  not  come  to  a  full  stop,  if  his  injury  was  due  to  the 
negligence  of  those  in  charge  of  the  car  in  starting  it  at  a  more 
rapid  speed  while  he  was  in  the  act  of  getting  on  board,  without 
fault  on  his  part. 

If  plaintiff  was  standing  at  said  crossing  and  so  signal.'.l.  and 
the  car  thereupon  either  was  stopped,  or  so  slackened  speed,  and 
he  was  so  injured  by  their  fault,  and  without  fault  on  his  part, 
the  fact  that  his  signal  was  not  seen,  and  such  stopping  or  Black- 
ing speed  was  done  for  some  other  reason,  if  such  were  the  fact, 
would  not  affect  his  right  to  recover.  So  stopping  or  so  slacken- 
ing speed,  as  to  justify  an  attempt  to  get  on  board,  would  be  an 
invitation  to  enter  the  car,  if  those  in  charge  of  it  knew  or  should 
have  known  that  plaintiff  so  intended,  and  in  that  case  it  was 
their  duty  to  use  proper  care  to  see  that  the  car  was  not  started 
or  its  speed  increased  until  he  was  safe  on  board. 

It  makes  no  difference  as  to  plaintiff's  right  to  recover  whether 
the  car  started  or  increased  speed  suddenly  or  with  a  jerk,  or 
otherwise,  if  its  so  doing  was  due  to  negligence  on  the  part  of 
those  in  charge  of  it,  which  was  the  cause  of  plaintiff's  injury, 
without  fault  on  his  part.  That  is,  if  he  was  at  the  crossing 
and  was  justified  under  all  the  circumstances  as  a  man  of  ordi- 
nary prudence,  in  attempting  to  board  the  ear  as  lie  did.1 

iKumler,  J.,  in  Mt.  Adams  &    Eden   Park    In.    Ky.   r.    Peppard,  S.  ('.   2927. 
Judgments  affirmed.     Booth  on  St.  It  vs..  sec.  336. 

Sec.  2285.  Injury  to  one  who  claims  to  have  attempted  to 
board  car  at  crossing,  where  defense  is  that 
the  attempt  was  to  board  while  car  moving 
between  streets — A  short  charge. 

Negligence  in  a  case  like  this  is  the  failure  to  observe  a  high 
degree  of  care  towards  plaintiff,  if  you  believe  his  claim  that  he 

was  in  the  act    of  boarding  the   car  and   bee Lng  a    passenger. 

If,  on  the  other  hand,  he  attempted  to  hoard   the  car  while   it 


2090  INSTRUCTIONS   TO   JURY. 

was  running  between  streets,  the  only  duty  that  was  owing  to 
him  by  the  company  was  not  to  willfully  or  recklessly  injure  him. 

1.  When  a  passenger.  The  measure  of  care  exacted  of  a  common 
carrier  of  passengers  is  the  highest  degree  of  care ;  but  that  is 
only  owing  by  such  carrier  when  the  person,  as  in  the  case  of  a 
street  car,  is  in  the  act  of  becoming-  a  passenger.  He  is  to  be 
treated  as  a  passenger  when  he  is»in  the  act  of  stepping  on  the 
car  at  a  stopping  place,  as  well  as  when  he  gets  into  the  car  and 
takes  his  seat. 

2.  Duty  when  persons  in  act  of  becoming  passenger.  The 
law  requires  that  defendant,  as  a  common  carrier,  exercise 
a  high  degree  of  care  for  the  safety  of  its  passengers  when 
persons  are  in  the  act  of  becoming  passengers.  The  performance 
of  this  duty  require'd  the  defendant  to  stop  its  car  at  the  stop- 
ping place  a  sufficient  length  of  time  to  enable  the  plaintiff  in 
the  exercise  of  ordinary  care,  to  board  it.  it'  the  claim  asserted 
by  him  is  true  that  he  was  at  the  street  crossing  and  attempting 
to-  exercise  his  right  to  board  the  car.  The  rule  can  not'  apply 
unless  he  was  there  in  that  act.  If  the  greater  weight  of  the 
evidence  proves  that  defendant  did  not  perform  this  duty  but 
was  negligent  and  this  negligence  was  the  sole  cause  of  the 
injury  to  plaintiff,  your  verdict  should  be  for  the  plaintiff  and 
you  should  in  such  event  award  him  such  damages  as  may  com- 
pensate him  for  his  injury,  not  beyond  the  amount  he  claims  in 
his  petition,  including  medical  expenses  as  alleged  by  him. 

3.  Attempt  to  board  between  struts.  The  defendant  claims 
that  plaintiff  himself  was  guilty  of  negligence  which  was  the  sole 
cause  of  the  injury  to  him.  It  is  claimed  in  evidence  that  plain- 
tiff attempted  to  board  the  car  between  street  crossings  and  while 
the  car  was  running.  A  person  has  no  right  to  board  a  street  car 
except  at  regular  stops.  So  then  one  who  undertakes  to  board  a 
street  car  between  street  crossings  assumes  all  risks  incident  to 
such  an  act. 

If  the  jury  find  that  plaintiff  did  attempt  to  board  a  moving 
street  car  before  it  arrived  at  a  street  crossing  or  a  regular 
stopping  place,  and  that  he  attempted  to  board  the  car  between 
the  streets  while  it  was  in  motion,  and  that  such  act  on  his  part 


STREET  RAILWAYS.  2091 

was  the  cause  of  his  injury,  your  verdict  should  be  for  the  de- 
fendant.1 

iGoldforb  v.  Railway  &  Light  Co.,  Franklin  Co.  Com.  Pleas.  Kinkcad,  J. 
If  those  in  charge  of  car  exercise  clue  care  to  see  or  hear  those  who 
wish  to  take  passage,  there  is  no  liability  by  suddenly  starting 
the  car  while  one  is  attempting  to  enter,  if  they  do  not  know  that 
such  person  was  attempting  to  get  on.  Booth  Street  Railways 
348,  note  166;  Lamline  v.  R.  R.  Co.,  14  Daly  144;  Meriwether  a 
Ry.  Co.,  45  Mo.  App.  528. 

Sec.  2286.     Contributory  negligence  in  boarding  moving  street 
cars. 

Whether  or  not  it  is  negligence  to  board  moving  street  ears 
depends  upon  the  rate  of  speed  at  which  the  car  is  going.  1 C 
the  plaintiff  attempted  to  board  the  car  when  it  was  moving  at 
a  rapid  rate  of  speed,  or  such  rate  of  speed  as  made  it  danger- 
ous to  get  on,  it  was  negligence  on  his  part  to  attempl  to  board 
the  car  when  it  was  so  moving,  and  if  that  negligence  contrib- 
uted in  any  degree  to  his  injury,  he  may  not  recover,  although 
you  may  find  that  those  in  charge  of  the  moving  car  were  also 
negligent. 

If  the  car  was  moving  either  slowly  or  rapidly,  the  duty  did 
not  devolve  upon  the  driver  to  stop  the  car  until  the  plaintiff 
got  on  and  got  into  his  seat  safely.  But  if  the  evidence  -hows 
that  the  car  was  standing  still,  and  especially  if  at  a  place  where 
a  passenger  had  a  right  to  get  on,  or  if  it  was  Btanding  still  at 
any  place  that  would  give  a  passenger  a  right  to  gel  on,  and  the 
driver  saw  the  plaintiff  getting  on,  it  was  his  duty  nol  to  move 
the  car  till  he  was  on  and  had  a  reasonable  time  to  take  a  Beat, 
and  if  he  failed  to  wait,  if  the  evidence  shows  to  you  thai  the 
car  was  standing  still,  and  that  he  failed  to  wait  until  plaintiff 
boarded  the  car,  and  he  saw  the  plaintiff  getting  on,  then  it  was 
negligence  on  his  part,  and  the  defendant  company  is  Liable  tor 
any  injuries  that  may  have  been  caused  to  him  in  that  manner.1 

i  Pugh,  J.,  Franklin  Co.  Coin.  Pleas. 

It  is  not  negligence  per  se  to  board  a  car  while  it   ia  moving  ilowly,  187 
Mass.  210,  60  N.  Y.  195;   Booth  on  St.  Rye.,  sec.  336.    The  p< 
assumes  all  the  ordinary   risk-*.     Td.     The   pa    lengei    Bill  <    be  gff« 
a  reasonable  time  to  board  the  car  in  safety.     Id. 


2092  INSTRUCTIONS   TO   JURY. 

Sec.  2287.  Duty  to  stop  at  usual  stopping  places — Passenger 
on  signaling  attempting  to  board  before  it 
stops. 

It  is  the  duty  of  the  defendant  railway  company  to  stop  its 
cars  at  its  usual  stopping  places  to  take  on  passengers,  and  for 
such  reasonable  time  as  to  give  them  reasonable  opportunity  to 
get  aboard,  so  as  not  to  endanger  the  safety  of  the  passenger; 
but  where  the  cars  are  signaled  to  stop  at  other  than  regular 
stopping  places,  the  plaintiff  would  not  be  justified  in  attempt- 
ing to  get  on  the  car,  until  it  had  fully  stopped,  unless  the  plain- 
tiff was  reasonably  misled  into  the  belief  by  the  concurring  con- 
duct of  the  defendant  that  it  would  be  safe  for  him  under  the 
circumstances  to  get  on  board  the  car  while  so  in  motion.1 

iVoris,  J.,  in  Sourek  v.  St.  Ry.   Co.,  Summit  Co.  Com.  Pleas.     See  128 
N.  Y.  583,  12  N.  Y.  S.  930. 

Sec.  2288.  Duty  to  stop  car  long  enough  to  afford  passenger 
reasonable   opportunity   to  alight. 

The  court  can  not  say  to  you  as  a  matter  of  law  how  long  the 

car  of  the  defendant  should  have  stopped  when  plaintiff  alighted ; 

but  whether  the  car  did  stop,  or  whether  it  stopped  long  enough 

for  plaintiff  to  alight  with  safety,  are  matters  of  fact  for  you 

to  determine  under  all  the  circumstances  of  the  case  given  you 

in  the  evidence.     We  do,  however,  say  to  you  that  the  car  ought 

to  have  been  stopped  long  enough  to  give  the  plaintiff  reasonable 

opportunity  to  alight  in  safety.1 

iVoris,   J.,  in   Dussel   v.   Akron  St.  R.  R.   Co.,  Summit  Co.  Com.   Pleas. 

Affirmed  by  circuit  and  supreme  court. 
Booth  on  St.  Rys.,  sec.  347. 

Sec.  2289.    Duty  to  assist  passenger  in  alighting— Question 
for  jury. 
What  actual  assistance,  beyond  stopping  the  cars  for  a  reason- 
able time,  the  conductor  should  have  given  to  the  plaintiff,  if 
any,  we  leave  as  a  question  of  fact  for  you  to  determine  under 


STREET  RAILWAYS.  2093 

all  the  circumstances  developed  by  the  evidence;  and  you  may 
consider  the  ordinances  of  the  city,  making  it  the  duty  of  the 
conductor  to  assist  passengers  to  alight,  in  connection  with  other 
evidence  in  the  case,  giving  it  such  effect  as  you  think  it  en- 
titled to. 

The  defendant  was  not  an  insurer  of  the  safety  of  the  plaintiff 
in  alighting  from  the  car,  but  by  accepting  her  as  a  passenger 
on  its  car  it  bound  itself  to  provide  her  with  a  sat',-  car  to  trans- 
port her  to  the  place  of  destination,  and  not  to  expose  her  to  any 
hazard  in  alighting  that  reasonable  care  and  prudence  conld 
prevent;  and  in  taking  passage  on  the  car  she  took  upon  herself 
the  hazards  incident  to  passenger  transportation  upon  the  de- 
fendant's car,  when  properly  managed,  and  upon  a  car  competent 
for  the  service  to  which  it  was  applied  at  the  time  of  the  injury.1 

i  Voris,   J.,    in    Dussel    v.   Akron    St.   E.    R.    Co.    Summit    Co.    Com.    TM.:i-. 

Affirmed  by  circuit  and  supreme  court. 
Booth  on  St.  Rvs.,  sec.  349. 

Sec.  2290.     Injury  to  passenger  while  leaving  car  by  being 
thrown  from  car. 

The  fact  that  the  plaintiff  was  injured  by  either  having  be*  □ 
thrown  or  by  falling  from  the  car  does  not,  in  itself,  justify  you 
in  concluding  that  the  defendant's  employers  were  negligent,  as 
charged  in  the  plaintiff's  petition.      Negligence  can  not   1" 
sumed;   it  must  have  been  proved  by  affirmative  evidence. 

(a)  Duty  of  carrier  to  use  high  degree  of  <  <tr<  towards  such 
passenger. 

The  defendant,  being  a  common  carrier  of  passengers,  was 
required,  through  its  employees  in  charge  of  the  ear.  to  exercise 
the  highest  degree  of  care  which  might  be  reasonably  exp< 
of  intelligent  and  prudent  persons  engaged  in  the  business  of 
running  street  cars,  considering  the  instrumentalities  employed, 
and  the  dangers  naturally  to  be  apprehended.  Bu1  the  defend 
ant  was  not  obliged  to  insure  the  safety  of  the  plaintiff  as  one  of 
its  passengers ;  it  was  not  bound,  absolutely,  and  at  all  events, 
to  carry  him  safely  without  injury.1 


2094  INSTRUCTIONS   TO   JURY. 

(6)  Duty  of  such  passenger — Correlative  duty  of  passenger 
and  carrier. 

There  was  also  a  duty  resting  upon  the  plaintiff  while  he 
was  a  passenger  upon  the  defendant's  car.  It  was  his  duty  to 
exercise  that  ordinary  care  and  prudence  which  a  prudent  man 
would  himself  observe  to  save  himself  from  injury.  The  degree 
of  care  on  the  part  of  the  railroad  company  was  the  highest 
degree  of  care  and  skill ;  the  degree  of  care  on  the  plaintiff  as  a 
passenger  was  ordinary  care  and  skill.  If  he  was  guilty  of 
negligence,  if  he  did  not  observe  ordinary  care,  and  that  con- 
tributed to  his  injury,  he  is  not  entitled  to  recover  damages  from 
the  defendant. 

If  the  plaintiff  was  negligent,  and  his  negligence  in  any  degree 
contributed  to  the  plaintiff's  precipitation  or  fall  from  the  car, 
he  can  not  recover. 

(c)   Plaintiff  voluntarily  leaving  car  while  in  motion. 

Therefore  if  the  plaintiff  voluntarily  left  his  place  in  the  car, 
took  his  position  on  the  step,  and  there  remained  while  the  car 
was  going  at  the  rate  of  eight  or  ten  miles  an  hour,  he  thereby 
assumed  the  risk  of  any  injury  which  might  bo  paused  by  the 
usual  or  ordinary  movements  of  the  ear.  So,  if  he  voluntarily 
jumped  or  stepped  off  the  car  while  it  was  going  so  fast  as  to 
render  the  act  dangerous,  the  fact  that  the  car  did  not  stop  at 

street  was  no  excuse  for  him  to  so  jump  or  step  off  the 

car,  and  he  was  guilty  of  contributory  negligence.2 

i  Booth  on  St.  Rys.,  sec.  327. 

2  Pugh,   J.,    in    Cronin    v.    Columbus    Street    Ry.    Co.,    Franklin    Co.    Com. 
Pleas.     Leaving   car   while   in   motion.     Booth  on    Street   Railways, 
sec.  337;  Ganley  v.  Brooklyn  City  Ry.,  7  N.  Y.  S.  854. 

Sec.  2291.    Duty  to  stop  car  when  desired  stop  communicated. 
to  conductor  on  boarding  car. 

The  plaintiff  does  not  claim  that  he  signaled,  or  otherwise 

informed  the  conductor  just  before  the  car  reached street 

that  he  wanted  the  car  to  stop,  but  that  when  he  paid  his  fare 
he  gave  him  that  information.  If  the  conductor  was  so  informed 
that  the  plaintiff  wanted  to  get  off  at  street,  it  was  his 


STREET  RAILWAYS.  2095 

duty  to  stop  the  ear  so  as  to  give  him  an  opportunity  to  alight 
in  safety,  and  if  he  failed  to  do  that,  and  it  was  the  cause  of  the 
plaintiff's  injuries,  and  if  plaintiff's  negligence  did  not  con- 
tribute to  them,  the  company  is  liable  to  respond  in  dam., 

Must  have  been  the  proximate  cause. 

If  you  find  that  he  did  give  the  conductor  that  information, 
was  the  failure  of  the  conductor  to  have  the  car  rtopped  tie 
proximate  cause,  the  legal  cause  of  the  plaintiff's  precipitation 
from  the  car,  if  that  was  proved;  did  the  plaintiff  exercise 
ordinary  care  in  stepping  out  on  the  car  steps,  before  the  car 
stopped,  and  standing  there  as  he  says  he  did?  If  it  was  nol 
the  observance  of  ordinary  care,  the  question  for  you  to  con- 
sider is,  whether  that  was  not  the  proximate  cause  of  him  being 
thrown,  or  of  his  falling  from  the  car,  instead  of  the  failure  of 
the  conductor  to  stop  the  car. 

If  that  conduct  of  the  plaintiff  was  the  proximate  cause, 
he  can  not  recover.  The  failure  of  the  conductor  to  stop 
the  car  must  have  been  the  proximate  cause  to  entitle  him 
to  recover.  It  is  difficult  to  make  this  plain;  I  mean  what  is 
in  law  proximate  cause.  His  precipitation  or  falling  Erom  the 
car  must  have  been  the  natural  or  probable  result  of  the  con 
ductor's  failure  to  stop  the  car,  if  that  was  proved.  The  failure 
of  the  conductor  to  stop  the  car,  if  a  fact,  must  have  been  tin- 
direct  cause  of  his  injuries,  not  in  point  of  time,  bu1  in  relation 
to  the  plaintiff's  precipitation  or  falling  from  the  car.  Between 
the  failure  of  the  conductor  to  stop  the  car,  and  the  precipita 
tion  or  falling  from  the  car,  there  must  have  been  no  interven- 
ing and  independent  cause,  disconnected  with  the  fault  of  the 
conductor  to  stop  the  car,  and  self-operating,  which  produced 
the  plaintiff's  precipitation  or  falling  from  II ar.  If  tie- 
plaintiff  informed  the  conductor  that  he  wanted  the  car  stopped 

at street,  he  had  a  right  to  expecl  that  he  would  stop  it 

there  so  he  could  get  off ;  but  did  thai  authorize  him,  in  the  exer 
cise  of  ordinary  care,  to  go  out  and  gel  on  the  step  of  the  car. 

if  that  was  a  place  of  danger,  when  t) ar  was  go  Did  it 

authorize  him  as  a  prudent  man  to  go  mil  on  the  Btepl      If  you 


2096  INSTRUCTIONS   TO   JURY. 

answer  these  questions  in  the  affirmative,  then  you  must  find  for 
the  plaintiff;  but  if  you  answer  them  in  the  negative,  you  must 
conclude  that  the  conductor's  failure  to  so  stop  the  car  was  not 
the  proximate  cause  of  the  plaintiff's  precipitation  or  falling 
from  the  car.2 

i  See  Booth  on  St.  Rys.,  sec.  337. 

-  Pugh,  J.,  in  Cronin  v.  Columbus  Street  Ry.  Co.,  Franklin  Co.  Com.  Pleas. 

Sec.  2292.     Injury  to  passenger  while  alighting  from  car. 

This  charge  of  negligence,  in  substance,  is  that  after  the  car 
had  stopped,  and  while  she  was  in  the  act  of  alighting  from  the 
step  of  the  car,  it  was  started  up  before  she  had  succeeded  in 
alighting,  and  caused  her  to  be  thrown  to  the  street  and  injured 
in  the  manner  described  in  the  petition.  If  the  car  had  come 
to  a  stop,  and  while  it  was  standing  the  plaintiff  attempted  to 
alight,  and  before  she  had  succeeded  in  alighting  safely  the  car 
was  started  up,  and  such  sudden  starting  up  of  the  car  threw 
her  to  the  street  and  injured  her,  this  would  be  negligence  on 
the  part  of  the  defendant  which  will  render  it  liable  for  dam- 
ages to  the  extent  of  her  injuries. 

The  court  says  to  you,  gentlemen  of  the  jury,  that  the  plaintiff 
must  prove  this  charge  of  negligence  by  the  greater  weight  of 
the  evidence  in  order  to  entitle  her  to  recover.  The  court  also 
says  to  you  that  she  will  not  be  defeated  of  a  recovery  if  you 
should  find  it  to  be  the  fact  that  the  car  had  not  absolutely 
stopped  before  she  attempted  to  alight,  if  it  had  almost  stopped 
or  slowed  down  to  a  rate  of  speed  which  would  enable  one  to 
alight  from  it  with  reasonable  safety,  and  was  suddenly  started 
up  again  or  its  speed  unexpectedly  increased,  thus  causing  the 
plaint  iff  to  fall  to  the  street — the  gist  of  the  complaint  being  the 
sudden  and  unexpected  starting  up  of  the  car.  But  the  mere 
fact,  if  you  find  it  to  be  a  fact,  that  before  the  car  had  stopped, 
and  as  it  was  slowing  down  to  stop,  its  rate  of  motion  was  in- 
creased, does  not  amount  to  negligence  as  a  matter  of  law,  and 
would  not  conclusively  show  that  the  defendant'  was  negligent. 
Wh ether  it  was  negligence  or  not,  if  you  find  that  before  it  was 


STREET  RAILWAYS.  2097 

stopped  its  rate  of  motion  was  increased  again,  is  a  question  of 
fact  to  be  determined  by  you  from  all  the  evidence  before  you. 
under  the  rule  I  have  stated  to  you  with  reference  t<>  the  measure 
of  duty  owed  to  the  plaintiff  by  the  defendant. 

The  defendant  not  only  denies  its  negligence,  but  says  farther 
that  the  plaintiff's  own  negligence  was  a  direct  and  proximate 
cause  of  her  injuries.  It  is  a  rule  of  law  as  well  settled  as  that 
with  regard  to  the  obligation  of  the  defendant  to  exercise  care 
for  the  safety  of  the  plaintiff,  that  the  plaintiff  herself  was 
bound  to  exercise  care  for  her  own  safety;  and  if  she  failed 
to  do  so  on  the  occasion  in  question,  and  her  own  negligence 
was  a  direct  and  proximate  cause  of  her  injuries,  then  she  can 
not  recover,  even  though  you  find  that  the  defendant  was  also 
negligent.  Of  course,  if  the  plaintiff's  injuries  were  caused 
solely  by  her  own  negligence,  she  can  not  recover. 

If  you  find  that  the  car  was  being  stopped  upon  the  request 
of  the  plaintiff,  and  without  negligence  on  the  part  of  the  d< 
fendant,  the  plaintiff  fell  because  she  attempted  to  get  off  while 
the  car  was  in  motion,  she  can  not  recover. 

The  defendant  has  also  stated  what  its  claim  is  with  regard  to 
the  plaintiff's  negligence;  and  the  defendant  is  also  confined 
in  its  proof  to  the  plaintiff's  negligence  stated  in  iis  answer. 
This  negligence  is  stated  to  have  been  that  she  attempted  to 
alight  from  the  car  after  it  was  being  brought  to  a  stop  for  the 

purpose  of  allowing  her  to  alight,  and  before  il ar  had  come 

to  such  stop.     The  mere  fact  that  she  attempted  to  alighl  from 
the  car  when  moving,  if  you  find  that  to  he  the  fact,  is  not  en 
elusive  evidence  of  negligence  on  her  part.      Whether  it    mm 
negligence  on  her  part  under  all  the  circumstances  is  a  question 

of  fact  to  be  determined  by  you   from  all   tl ridei in   the 

case.  The  duty  which  the  law  charged  upon  her  for  hep  own 
safety  was  to  exercise  ordinary  care;  thai  is.  such  ''are  as  per- 
sons of  ordinary  prudence  are  accustomed  to  exercise  under 
like  circumstances  and  conditions.  If  she  used  ordinary  ''ire 
for  her  own  safety,  then  she  was  nol  negligent.  If  she  did  not 
exercise  ordinary  care  for  her  own  safety,  and   tins   want   of 


2098  INSTRUCTIONS   TO   JURY. 

care  on  her  part  for  her  own  safety  was  the  sole  cause  of  her 
injuries,  or  was  a  contributing  cause  of  her  injuries,  she  can 
not  recover. 

As  I  have  said,  the  defendant  has  the  burden  of  proving  con- 
tributory negligence ;  that  is,  that  the  negligence  of  the  plaintiff 
directly  contributed  to  her  own  injuries;  and  if  you  find  that" 
the  defendant  was  guilty  of  the  negligence  charged,  and  that 
this  negligence  was  the  direct  and  proximate  cause  of  plaintiff's 
injuries,  then  to  make  the  defense  available  that  her  own  negli- 
gence contributed  to  that  of  the  defendant  to  cause  the  injuries, 
this  defense  of  contributory  negligence  must  be  proven  by  the 
greater  weight  of  all  the  evidence;  but  if  there  is  as  much  evi- 
dence that  the  plaintiff's  injuries  were  caused  solely  by  her  own 
negligence  as  that  they  were  caused  by  the  negligence  of  the 
defendant,  then  the  plaintiff  must  fail  and  your  verdict  should 
be  for  the  defendant,  for  the  reason  that  the  greater  weight  of 
the  evidence  must  be  in  favor  of  the  plaintiff's  claim  that  the 
defendant's  negligence  caused  her  injuries;  and  if  there  is  as 
much  that  they  were  solely  caused  by  her  own  negligence,  then 
the  plaintiff  does  not  have  the  weight  of  the  evidence  on  her  side. 

If  you  find  that  the  weight  of  the  evidence  does  not  prove  that 
the  defendant  started  the  car  up  after  it  had  stopped,  or  sud- 
denly increased  it's  speed  after  it  had  almost  stopped,  that  will 
be  the  end  of  your  deliberations,  and  you  should  render  your 
verdict  for  the  defendant.  But  if  you  find  that  the  defendant 
was  negligent  as  alleged,  and  that  its  negligence  was  the  direct 
and  proximate  cause  of  the  plaintiff's  injuries,  you  will  then 
inquire  whether  the  plaintiff  herself  was  guilty  of  contributory 
negligence  which  directly  and  proximately  contributed  to  cause 
her  injuries.  If  you  find  that  the  preponderance  of  the  evi- 
dence proves  that  she  was  guilty  of  contributory  negligence, 
then  your  verdict  should  he  for  the  defendant.  But  if  you  find 
that  the  defendant  was  negligent  as  alleged  in  the  petition,  and 
that  this  was  the  direct  and  proximate  cause  of  the  plaintiff's 
injuries,  and  that  the  defense  of  contributory  negligence  on  her 
part  has  not  been  proven,  then  your  verdict  should  be  for  the 


STREET  RAILWAYS.  2099 

plaintiff,  and  you  will  proceed  to  determine  the  extenl  of  her 
damages.  These  should  be  in  such  an  amount  as  will  fully  com- 
pensate her  for  the  injuries  wkich  you  may  find  have  directly 
resulted  from  the  negligence  of  the  defendant.  This  will  in- 
clude compensation  for  the  pain  and  suffering,  physical  and 
mental,  directly  resulting  from  her  injuries;  and  also  for  any 
future  pain  and  suffering,  if  her  injuries  are  of  such  character 
as  to  cause  her  pain  in  the  future;  also  compensation  for  loss 
of  time,  if  any,  resulting  from  her  injuries  during  the  period 
when  she  was  disabled,  if  she  was  disabled,  from  pursuing  her 
ordinary  avocation;  and  also  for  any  permanent  impairment 
to  her  ability  to  perform  labor,  if  you  find  there  has  been  any 
such  permanent  impairment. 

If  you  find  that  the  plaintiff  is  entitled  to  recover  general 
damages,  she  will  be  entitled  also  to  recover,  in  addition  to  her 
general  damages,  her  expenses  actually  and  necessarily  incurred 
by  way  of  medical  attendance  and  hospital  and  ambulance  serv- 
ice, and  which  evidence  shows  she  expended  or  for  which  she 
incurred  an  obligation  to  pay,  but  not  in  excess  of  the  amount 
claimed  in  the  petition.  But  you  can  not  award  special  dam- 
ages unless  you  find  that  she  is  entitled  to  recover  general  dam- 
ages.1 

i  Sheets    v.    Columbus    Tly.    &    L.    Co.,    Franklin    Co.    Com.  Picas.     Big- 
ger,  J. 

Sec.  2293.     Stopping  cars  for  passengers  to  alight — Duty  of 
conductor  as  to  passenger  alighting. 

If  you  find  from  the  evidence  that  in  this  case  the  defendant  'a 
conductor  stopped  the  car  himself  upon  a  notice  communicated 
to  him  by  this  plaintiff,  and  started  the  car  before  she  had  fully 
alighted,  then  your  verdict  will  be  for  the  plaintiff. 

(a)  By  gripman  to  receive  passenger  Passenger  leaving  car 
at  that  time. 

If,  however,  you  find  that  the  conductor  himself  did  mil  atop 
the  train,  but  that  it  was  done  by  some  other  person  on  the  t  rain 
at  the  plaintiff's  request,  or  that  it   was  done  by  the  gripman 


2100  INSTRUCTIONS   TO    JURY. 

in  order  to  receive  a  passenger  from  the  street,  and  if,  upon  the 
stopping  of  the  car,  the  plaintiff  proceeded  to  leave  it,  and  in 
leaving  it  the  train  was  started  without  any  notice  or  expecta- 
tion on  her  part,  and  she  was  thrown  to  the  ground  and  injured, 
then  it  will  be  for  your  decision  to  determine  whether  the  de- 
fendant was  guilty  of  ordinary  neglect  which  directly  caused  the 
injury  complained  of. 

(&)  Knowledge  of  conductor  of  intention  of  passenger  to 
alight — Duty  fo  look  out  for  departure. 

If  the  conductor  knew,  or  had  reason  to  know,  that  the  plain- 
tiff intended  to  leave  the  car  when  it  stopped  at  the  corner,  and 
if  you  find  that  at  that  point  the  car  stopped,  it  was  then  the 
duty  of  the  conductor  to  look  out  for  her  departure,  and  to  wait 
such  length  of  time  as  would  have  enabled  him  to  know  that 
she  had  not  given  up  the  intention  of  getting  out  of  the  car. 
And  if,  under  such  circumstances,  he  did  this — that  is,  if  you 
find  that  he  had  notice,  or  that  he  really  knew  that  she  wanted 
to  get  off  at  that  point,  and  if  you  find  that  he  did  wait  long 
enough  so  that  he  was  enabled  to  determine  that  she  did  not 
intend  to  get  off  the  car,  and  yet,  notwithstanding  what  he  did, 
this  injury  happened,  or  this  thing  happened,  then  there  is  no 
negligence  chargeable  to  the  defendant,  and  your  verdict  will 
have  to  be  in  favor  of  the  defendant. 

If,  however,  under  such  circumstances  he  did  not  look  for  her 
departure,  and  did  not  wait  the  requisite  time  already  described 
to  you,  and  if  in  consequence  thereof,  and  a  direct  result  of  it, 
the  car  was  caused  to  start,  and  she  was  thrown  and  injured  as 
she  claims,  then  there  is  negligence  as  would  make  the  defendant 
answerable  to  the  plaintiff. 

If,  however,  you  should  find  that  the  conductor  did  not  have 
reason  to  know  that  the  plaintiff  intended  or  wanted  to  leave 
the  train  where  it  stopped  at  the  corner,  then  you  are  to  deter- 
mine whether  his  want  of  knowledge  was  the  result  of  any  negli- 
gence on  his  part,  whether  it  was  negligent  for  him  to  proceed 
afterward  to  the  grip-car  before  ascertaining  whether  any  pas- 
sengers intended  to  get  off,  or  whether  it  was  negligent  on  his 


STREET  RAILWAYS.  2101 

part,  in  view  of  the  crowded  condition  of  the  car.  to  abstain 
from  working  his  way  through  the  car  towards  the  front,  and  if 
he  had  done  so.  whether  he  could  have  ascertained  that  she 
wanted  to  leave  the  car— whether  it  was  negligent  for  him  to  do 
what  he  did  under  the  circumstances,  and  if  that  aegligence 
had  a  tendency  or  caused  him  to  remain  in  ignorance  as  to  her 
intention. 

Now,  in  determining  this  question  of  negligence,  should  yon 
find  that  he  had  no  notice,  or  did  not  know  thai  she  was  about 
to  leave  the  car,  or  intended  to  leave  the  car  at  this  point,  you 
can  take  into  consideration  whether,  if  he  had  exercised  care 
with  reference  to  ascertaining  whether  she  wanted  to  gel  on1  of 
the  car  or  not,  it  would  have  helped  him  any.  You  can  lake 
that  into  consideration,  because  even  if  he  were  careful,  and 
even  if  he  had  taken  steps  under  the  circumstances,  keeping  in 
mind  the  hour  of  the  day,  the  condition  of  the  train,  the  man 
agement  of  the  train  at  that  point,  even  if,  under  those  circum- 
stances, had  he  been  careful,  and  yet  could  not  have  ascertained, 
under  the  circumstances,  that  she  wanted  to  leave  the  train,  if 
you  even  should  find  that  that  was  careless  on  his  part,  thai  care- 
lessness could  not  be  said  to  have  contributed  to  her  injury,  and 
in  that  event  your  conclusion  upon  that  point  must  not  be  against 
the  defendant.1 

i  Schroder,  J.,  in  The  Mt.  Adams  &  Eden  Park  Inclined  Ry.  0.  VTyaong. 
Dismissed  in  supreme  court.  To  save  reversal  on  account  of  ex 
cessive  verdict  remittitur  was  made  in  circuit  court.     See  Booth  «n 

St.  Rys.,  sec.  349. 

Sec.  2294.     Injury  while  alighting  from  car  by  catching  cloth- 
ing on  car — Duty  of  passenger  and  company. 

"The  jury  are  instructed  that  this  ease  is  to  be  determined 
upon  the  facts  offered  in  evidence,  and  not  upon  any  theorj 
advanced  to  explain  circumstances;  thai  is  to  Bay,  thai  before 
the  plaintiff  shall  be  entitled  to  a  verdict  for  any  amount, 
the  evidence  must  prove  to  the  jury  thai  the  defendant,  its 
agents  or  employees  had  carelessly  and  negligently  main 
tained  or  permitted  some  obstruction  to  be  on  or  upon  the  plal 


2102  INSTRUCTIONS   TO    JURY. 

form  or  step  of  said  car,  whereby  the  dress  of  the  lady  in  the 
act  of  leaving  the  car  would  be  caught.  The  evidence  must 
prove  this  fact.  If  it  does  not,  and  the  defendant,  its  agents  or 
employees  not  being  otherwise  negligent  in  the  discharge  of 
their  duty,  and  the  plaintiff  herself,  in  leaving  said  car  care- 
lessly, neglected,  in  the  exercise  of  ordinary  care,  to  handle  or 
take  care  of  her  dress  skirts,  and  such  negligence  or  carelessness 
of  the  plaintiff  was  the  proximate  cause  of  her  injury,  she  can 
not  recover,  and  your  judgment  should  be  for  the  defendant." 

"The  plaintiff  in  this  case  claims  that  her  dress  was  held  in 
some  way  upon  the  platform  of  the  defendant's  car,  and  that 
the  conductor  negligently  started  the  car  while  it  was  so  held. 
If  it  was  held  upon  the  platform  or  step  by  some  object  or  force, 
that  is  a  separate  and  independent  fact,  and  if  you  find  the 
evidence  justifies  you  in  finding  such  to  be  the  fact,  you  may  do 
so  without  determining  how  or  by  what  it  was  held." 

"The  plaintiff  was  not  bound  to  apprehend  any  carelessness 
upon  the  part  of  the  defendant.  She  had  a  ri^ht  to  rely  upon 
the  defendant  having  its  platform  in  good  condition  and  free 
from  obstacles  of  an  unusual  character  upon  which  her  dress 
might  catch.  She  was  not  bound  to  apprehend  that  the  con- 
ductor might  start  the  car  while  her  body  was  in  contact  with 
it,  or  until  she  was  free  from  it  and  had  reached  a  position  of 
safety.  She  was  not  bound  to  apprehend  that  she  might  do 
anything  that  would  place  hrr  in  jeopardy.  On  the  contrary, 
she  had  a  right  to  place  full  reliance  on  the  defendant  doing  its 
full  duty  towards  her,  and  exercising  the  high  degree  of  care 
which  the  law  requires  of  it."1 

i  Patterson  r.  Inclined  Plane  Ry.  Co.,  12  O.  C.  C.  280;  Booth  on  St.  Rys., 
sec.  349. 

Sec.  2295.     Ejection  of  passengers  for  refusal  to  pay  fare — 
Transfer  tickets. 

The  carrier,  in  pursuance  of  his  rights  and  duties,  may  eject 
from  its  cars  persons  on  board  who  wrongfully  refuse  to  pay 
the  legal  rate  of  fare;    but  this  dangerous  discretion  must  be 


STREET  RAILWAYS.  2103 

prudently  and  rightfully  exercised.  If  you  find  that  the  trans- 
fer ticket  came  into  the  hands  of  the  plaintiff  wrongfully,  it 
would  not  entitle  him  to  ride  on  it;  and  if  he  attempted  to  ride 
on  it,  on  refusal  to  pay  the  legal  rate  of  fare  he  might  rightfully 
be  ejected  from  the  car  by  the  defendant.  But  if  he  pay  the 
legal  rate  of  fare  and  receive  the  transfer  ticket  from  the  trans- 
fer agent,  to  enable  him  to  complete  his  ride  to  the  point  of  des- 
tination for  which  he  had  paid,  then  he  could  not  be  rightfully 
ejected,  so  long  as  he  conducted  himself  with  propriety,  and  did 
not  violate  the  reasonable  rules  of  the  railroad  company.1 

i  Steffee  v.  R.  R.  Co.,  Summit  Co.  Com.  Pleas.     Yoris,  J. 
Upon  the  subject  and   in  support  of  charge,  see  Mahoney   v.   Detroit  City 
Ry.,  53  N.  W.  793;  Frederick  v.  Railroad  Co.,  37  Mich.  342. 

Sec.  2296.     Damages  for  wrongful  ejection  of  passenger. 

The  jury  must  be  instructed  that  the  plaintiff,  if  entitled  to 
recover,  may  be  awarded  the  usual  kinds  of  damages — compen- 
satory and  exemplary,  which  have  been  explained  frequently 
elsewhere,  by  instructions  given  in  other  kinds  of  eases,  but  the 
charge  given  in  the  particular  case  found  in  the  preceding  sec- 
tions will,  nevertheless,  be  inserted  here. 

If  you  find  for  the  plaintiff,  the  further  consideration  of  dam- 
ages comes  in.  In  that  case  his  damages  should  be  compensatory, 
and  in  one  aspect  of  the  case  they  may  be  more. 

Compensatory  damages  include  such  sum  as  in  your  judgment 
he  ought  to  receive  for  the  injuries  caused  by  the  wrongful  acts, 
that  naturally  or  ordinarily  resulted  from  the  wrongful  acta. 
This  includes  injury  to  personal  feeling,  sense  of  humiliation 
and  insult  growing  out  of  the  manner  of  committing  tie-  wrong, 
the  public  exposure  and  imputation  of  crime  to  commit  a  fraud 
upon  the  company  in  beating  a  ride,  by  reason  of  the  wrong! 
you  find  from  the  evidence  were  committed.  This  is  a  matter 
very  much  within  the  discretion  of  the  jury,  but  tliis  must  be  a 
discretion  reasonably  exercised. 

If  you  find  from  the  evidence  thai  in  t! mmission  of  tie- 
wrong  it  involved  the  ingredients  of   fraud,   malice,    insult   or 


2104  INSTRUCTIONS   TO   JURY. 

oppression,  and  the  plaintiff  had  conducted  himself  within  the 
proprieties  of  the  place,  you  may  go  beyond  the  rule  of  mere 
compensation  and  award  exemplary  or  punitive  damages;  that 
is,  such  damages  as  will  compensate  him  for  the  wrong  done  to 
him,  and  to  punish  the  defendant,  as  well  as  to  furnish  an 
example  to  deter  others.  We  feel  it  incumbent  upon  the  court 
to  say  to  you  that  in  the  exercise  of  your  discretion  to  visit 
exemplary  damages  upon  the  defendant  you  should  do  it  with 
exceeding  caution.  In  case  you  should  find  for  the  plaintiff 
you  may  take  into  consideration,  as  compensatory  damages,  rea- 
sonable counsel  fees  employed  by  the  plaintiff  in  prosecuting 
this  action.1 

i  Steffee    v.    The    Akron    Street    Railroad    Co.,    Summit    Co.    Com.    Pleas. 
Voris,  J.     Booth  on  St.  Rys.,  sees.  419,  197. 

Sec.  2297.     Duty  of  railway  to  travelers  in  street. 

The  street  railroad  company  in  the  use  of  the  street  owes  to 
the  public  using  the  street  the  duty  to  carefully  and  prudently 
exercise  its  right  of  running  its  cars  on  the  street,  so  that  it 
does  not  injure  others;  but  it  is  required  to  exercise  no  higher 
degree  of  care  than  that  required  of  the  plaintiff,  and  that  which 
the  circumstances  reasonably  require,  but  this  care  must  be 
commensurate  with  the  hazards  ordinarily  attending  the  opera- 
tion of  its  cars  upon  the  public  streets  of  the  city. 

The  privileges  granted  to  the  railroad  company  to  lay  down 
its  tracks  and  operate  its  cars  are  upon  an  implied  condition 
that  they  will  be  used  with  due  regard  to  the  rights  of  the  public 
in  the  highway,  and  that  it  will  not  be  guilty  of  negligence,  nor 
is  the  use  of  the  street  by  the  public  for  the  purpose  of  traveling 
in  the  ordinary  mode,  an  invasion  of  the  rights  of  the  persons 
operating  the  street  railway.  The  public  still  retains  the  right 
to  make  ordinary  use  of  the  street,  not  inconsistent  with  a  rea- 
sonable and  prudent  operation  of  the  defendant's  cars,  and  the 
railway  company  holds  its  privileges  on  an  implied  condition 
that  the  rights  of  the  public  shall  not  be  unnecessarily  impaired 
or  lessened. 


STREET  RAILWAYS.  2105 

It  is  the  duty  of  the  defendant  company  to  exercise  ordinary 
care  and  diligence  to  prevent  injury  to  persons  lawfully  travel- 
ing in  the  street  occupied  by  its  tracks.  It  is  bound  to  know 
that  the  public  may  use  the  entire  street  when  not  in  actual  us. 
by  its  cars,  and  it  must  employ  reasonable  means  to  prevent 
injury  to  those  whom  it  knows  or  ougbt  to  know  may  rightfully 
so  use  the  street.  This  knowledge  requires  that  it  shall  exercise 
due  care  and  diligence  to  make  it  reasonably  safe  to  travel  on 
the  highway  in  the  ordinary  mode.1 

i  Voris,  J.,   in   Cranmer   v.   Akron   St.   Ry.  Co.,  Summit  Co.  Com.    Pleas. 
Booth  on  St.  Rys.,  sec.  303. 

Sec.  2298.    Duty  to  use  ordinary  care  to  pedestrian. 

The  rights  of  travelers  or  pedestrians  in  the  streets  and  a 
street  railway  company  are  equal,  except  as  the  equality  of  right 
may  be  affected  by  the  fact  that  the  street  cars  can  do1  turn  off 
the  track.  This  fact,  however,  only  affects  the  duty  of  the 
pedestrian,  because  neither  the  street  railway  company  aor  the 
pedestrian  has  a  paramount  right,  the  rights  of  each  being 
equal.  Street  railways  in  using  the  streets  of  a  city  arc  required 
to  make  such  reasonable  use  thereof  as  is  consistent  with  the 
rights  of  other  persons  occupying  the  streets  in  conjunction  with 
them.  It  is  the  duty  of  the  company  to  exercise  such  reason- 
able and  ordinary  care  in  the  management  anil  operation  of  its 
cars  as  the  particular  circumstances  may  require  to  avoid  injury 
to  a  traveler  or  pedestrian  lawfully  using  the  street  ami  who  is 
himself  in  the  exercise  of  ordinary  care  and  prudence.1 
136  Cyc.  1513,  1514;  Ford  v.  Railway,  124  Kv.  488,  124  Am.  St.   112. 

Sec.  2299.     When  motorman  may  assume  that  pedestrian  will 

get  out  of  danger. 

The  jury  is  instructed  that  a  motorman  in  charge  of  a  street 

car,  on  seeing  a  person  on  the  tracks  of  the  railway,  has  the 

right  to  assume  that  he  will  gel  out  of  the  way  of  danger  as  the 

car    approaches.       Hut    he    can    not    rely    upon    this    assumption 
alone,  without  adopting  other  precautionary  measures  upon  dil 


2106  INSTRUCTIONS   TO   JURY. 

cqvery  that  the  pedestrian  is  careless.  lie  must  sound  the  bell 
and  give  warning  of  the  approach  of  the  car;  and  the  motorman 
in  sounding  the  bell  can  not  assume  that  all  within  hearing  will 
take  notice  that  a  car  is  approaching,  and  he  can  make  no  such 
assumption  in  justification  of  his  failure  to  take  reasonable 
precautions  until  at  least  he  has  reasonable  grounds  for  believing 
that  his  warning  is  heeded  or  the  presence  of  the  car  is  recog- 
nized, and  that  the  person  threatened  is  competent  to  protect 
himself  by  the  exercise  of  ordinary  care.1 
J  Riley  v.  R.  R.  Co.,  82  Conn.  105,  72  Atl.  562. 

Sec.  2300.     Pedestrian  may  assume  motorman  will  use  due  care. 

The  jury  is  instructed  that  a  person  walking  in  the  streets 
of  a  city  has  a  right  to  act  upon  the  assumption  that  a  motor- 
man  in  control  of  and  operating  a  street  car  will  use  due  and 
ordinary  care  in  managing  the  same,  that  he  will  have  the  car 
under  reasonable  control  at  a  street  intersection  where  people 
are  crossing.1 
iPilmer  v.  Traction  Co.,  14  Idaho,  327,   125  Am.  St.   161,   170. 

Sec.  2301.     Ordinary  care  required  of  person  about  to  cross 
track  at  street  crossing. 

The  jury  is  instructed  that  a  person  who  is  about  to  cross  the 
track  of  a  street  railway  is  bound  to  exercise  care  proportionate 
to  the  danger  to  be  avoided  and  the  consequences  which  might 
result  from  the  want  thereof.  The  care  to  be  exercised,  the 
amount  or  degree  threof,  depends  upon  the  particular  circum- 
stances ;  but  it  is  only  ordinary  care  which  is  required,  that  which 
might  be  reasonably  expected  of  persons  of  ordinary  prudence. 

Ordinary  care  does  not  require  such  person  to  anticipate  neg- 
ligence on  the  part  of  those  operating  the  railway.1 
i  Railwav  Co.  v.  Snell,  54  O.  S.  197. 


STREET  RAILWAYS.  2107 

Sec.  2302.  Injury  to  person  on  track— Duty  of  motorman— 
May  presume  pedestrian  will  be  prudent- 
Plaintiff  may  presume  company  will  not  be 
negligent. 

The  jury  is  instructed  that  if  the  motorman  could  by  the  exer- 
cise of  ordinary  care  have  seen  the  plaintiff,  and  stopped  the  car, 
and  that  by  reason  of  the  failure  to  so  stop  the  car  plaintiff  was 
knocked  down  and  injured,  it  would  be  such  negligence  on  the 
part  of  the  defendant  as  would  enable  plaintiff  to  recover  pro- 
vided plaintiff  was  not  contributory  negligent. 

The  motorman  had  the  right  to  presume  that  the  plaintiff 
would  not  attempt  to  cross  the  track  when  he  was  bo  near  that 
it  would  be  unsafe  and  dangerous  for  him  to  do  so.  Be  further 
had  the  right  to  presume  that  the  plaintiff  would  step  oil*  the 
track  before  the  car  reached  him,  providing  he  was  on  it.  Be 
also  had  the  right  to  presume  that  plaintiff  would  exercise  or- 
dinary care  in  attempting  to  cross  the  track,  as  we  shall  explain 
hereafter.  And  if  the  motorman,  in  relying  upon  these  presump- 
tions, as  he  had  a  right  to  do,  ran  his  cars  so  close  to  plaintiff  thai 
he  could  not  stop  the  same  in  time  to  avoid  the  accident,  or  in 
attempting  to  stop  the  car  struck  the  plaintiff  or  brushed  him  off 
the  track,  then  defendant  would  not  be  guilty  of  negligence. 

The  plaintiff  had  a  right  to  presume,  in  absence  of  knowledge 
to  the  contrary,  that  the  defendant  company,  in  respeel  to  the 
rate  of  speed  at  which  it  propelled  its  cars,  would  conform  to 
any  ordinance  which  the  city  had  properly  passed  with  reference 
to  this  subject,  and  it  would  not  he  negligence  on  his  part  to 
act  on  this  presumption  in  exposing  himself  to  such  danger  as 
could  only  arise  through  a  disregard  of  the  ordinance  by  the 
defendant  company.1 

i  Gillmer,  J.,    in   Eapple  v.  Youngstown   St.    By.   Co.,   Trumbull   <  "<•.   Com. 
Pleas. 


2108  INSTRUCTIONS   TO    JURY. 

Sec.  2303.    Relative  rights  and  duties  of  pedestrian  and  street 
cars  in  streets. 

The  jury  is  instructed  that  neither  the  street  car  nor  the  pedes- 
trian has  any  priority  or  privilege  right  over  the  other,  except 
in  so  far  as  may  arise  from  the  fact,  under  special  circumstances, 
that  a  street  car  can  only  run  on  the  tracks.  A  street  railway 
company  and  a  traveler  in  the  streets  of  the  city  have  equal 
rights  therein,  but  each  must  observe  due  and  reasonable  care 
to  avoid  and  prevent  accident  and  injury,  taking  into  account 
the  fact  that  the  street  cars  are  confined  to  the  track,  while 
pedestrians  have  freedom  of  movement.1 
i  Stewart  v.  Railway,  SS  Neb.  209,   12?   X.  W.  440,  Ann.  Cas.  1012,  B.  860. 

Sec.  2304.     Duty  of  employees  when  car  crossing  street  inter- 
section where  car  on  opposite  track  discharg- 
ing passengers. 
The  jury  is  instructed  that  the  employees  in  charge  of  a  street 
car  are  bound  to  use  due  and  reasonable  caution  and  care  [great 
caution]  in  crossing  a  street  intersection  at  a  point  where  a  car 
on  the   opposite   track  is,    [or  has  recently  been]    discharging 
passengers;  the  motorman  on  such  car  must  keep  a  [sharp]  look- 
out for  persons  passing  behind  the  ear  on  the  opposite  track, 
he  must  give  ample  and  timely  warning  of  the  approach  of  the 
car  by  sounding  the  bell,  and  he  must  have  it  under  such  rea- 
sonable control  as  may  enable  him  to  readily  and  promptly  stop 
the  car  if  there  is  danger  to  such  person  so  passing  around  the 
other  car  who  is  in  the  exercise  of  ordinary  prudence.1 

i  Stewart  v.  Railway,  88  Neb.  208,  129  N.  W.  440,  Ann.  Cas.  1012.  B.  861; 
Bremer  v.  Railway,  107  Minn.  326,  120  N.  W.  382,  21  L.  R.  A. 
(N.S.)   887;   Creamer  v.  R.  R.  Co.,  142  Ky.  340,  134  N.  W.  193. 

Sec.  2305.    Duty  in  avoiding  injury  to  children,  apparently 
intending  to  cross  street. 
The  jury  is  instructed  that  when  a  motorman  observes  a  per- 
son in  a  place  of  safety,  he  has  a  right  to  assume  that  he  will 
not  put  himself  in  a  place  of  danger ;  but  if  such  motorman  does 


STREET  RAILWAYS.  2109 

see  that  there  is  imminent  danger  to  a  person  in  the  street,  it 
then  becomes  his  duty  to  use  every  reasonable  effort  in  his  power 
to  stop  the  car,  and  avoid  causing  an  injury.  If,  by  the  exercise 
of  proper  and  reasonable  vigilance,  the  motorman  could  have 
seen  the  child  in  time  to  stop  the  car  and  avoid  striking  him,  it 
was  his  duty  to  do  so;  and  if,  when  he  saw  the  boy,  his  conducl 
indicated  that  he  was  intending  to  cross  the  track,  and  that  h* 
had  not  seen  the  car  or  heard  the  signals,  if  any  were  given, 
it  was  the  duty  of  the  motorman  to  use  every  effort  to  stop  the 
car.1 

iTecker  v.  Railway,  60  Wash.  570,  111  Pac.  791,  Ann.  Cas.  842. 

Sec.  2306.  Duty  of  parents  in  permitting  children  to  go  in 
streets. 

The  jury  is  instructed  that  a  parent  is  required  to  exercise 
ordinary  care  in  watching  and  controlling  his  child  in  permit- 
ting the  same  to  go  upon  the  streets.  It  can  not  be  said  thai 
a  parent  in  sending  a  young  child  upon  the  street  to  do  an  errand 
is  necessarily  negligent.  On  the  contrary  it  will  depend  upon 
the  peculiar  circumstances,  and  is  a  question  for  the  jury  t>>  de- 
cide. The  jury  will  therefore  consider  all  the  evidence  and  de- 
termine therefrom  whether  such  parent  was  guilty  of  contribu 
tory  negligence  in  permitting  the  boy  to  go,  so  as  t<>  preclude 
a  recovery  for  his  death  by  being  struck  by  a  street  ear.  etc' 

i  Tecfcer  v.  Railway,  60  Wash.  570,   111   Pac.  791,  Aim.  Caa.   B42;    Simon 
v.  St.  Ry.  Co.,  231   Mo.  <>r>,  132  S.  W.  i:>".  L40  Am.  St.  408. 

Sec.  2307.  Injury  to  conductor  by  being  struck  by  telephone 
pole  while  walking  along  running  board  of 
car. 

1.  Statement  of  claims  of  parti*  s. 

2.  Burden  of  proof. 

3.  Negligence  defined,  and  duty  of  <!<  f<  >i<l<i»ts  stated. 

4.  Alternative  findings  as  to  responsibility  of  railway  oom* 

pany. 

5.  Knowledge  of  danger — assumption  of  risk. 


2110  INSTRUCTIONS   TO    JURY. 

6.  Legal  obligation  of  telephone  company. 

7.  Alternative  findings  by  jury  as  to  liability  of  telephone 

company, 

8.  Measure  of  damages. 

1.  Statement  of  claims  of  the  parties.  Plaintiff  claims  that 
while  in  the  employ  of  the  railway  company  as  conductor  on  a 

summer  car  he  was  going  west  on  street,  the  car  being 

an  open  one,  along  both  sides  of  which  was  a  board  or  step 
called  a.  running-board,  along  which  plaintiff  had  to  walk  while 

collecting  fares ;    that,  as  the  car  reached  ,  and  while  the 

same  was  in  motion,  plaintiff  walked  along  the  right  side  of  the 
car  for  the  purpose  of  collecting  a  fare,  when  he  was  suddenly 
and  violently  struck  on  his  left  shoulder  by  a  telephone  pole 
owned  and  maintained  by  the  telephone  company.  It  is  claimed 
that  the  pole  was  within  about  fifteen  inches  of  the  north  edge 
of  the  running  board  while  the  car  was  passing  at  that  place  j 
that  the  pole  leaned  toward  the  car  track,  etc.  Plaintiff  claims 
that  be  did  not  know  and  bad  no  means  of  knowing  of  the  close 
proximity  of  the  pole  to  the  ear  tracks  and  passing  cars,  and 
that  he  was  struck  without  any  fault  of  his  own.  The  negli- 
gence charged  against  both  defendants  is  that  they  knew,  or 
should  have  known  of  the  existence  of  the  pole  and  of  the  dan- 
gerous proximity  thereof  to  the  street  car  track  and  passing 
cars,  that  it  permitted  its  tracks  to  be  and  remain  in  dangerous 
proximity  thereto;  that  it  permitted  the  pole  to  be  and  remain 
in  dangerous  proximity  to  the  track,  etc. 

The  questions  of  fact  presented  by  the  pleadings  for  the  jury 
to  determine,  are  whether  the  injury  complained  of  was  the 
result  of  or  caused  by  the  negligence  of  either  or  both  of  the  de- 
fendants, whether  or  not  either  or  both  of  the  defendants  were 
free  from  negligence  which  caused  the  injury  and  whether  the 
injury  was  the  result  of  or  caused  by  the  plaintiff's  own  negli- 
gence. 

2.  Burden  of  proof,  and  credibility  of  icitncsses.  The  burden 
of  proving  that  the  negligence  of  either  or  both  of  the  defendants 
was  the  cause  of  the  injury  to  plaintiff  rests  upon  him.      This 


STREET  RAILWAYS.  2111 

must  be  shown  by  plaintiff  by  a  preponderance  of  the  evidence. 
It  means  that  the  negligence  of  the  defendants,  cither  or  both 
of  them,  must  be  established  by  the  greater  weight  of  credible 
testimony;  not  necessarily  by  the  greater  number  of  witni 
You  must  give  such  credence  to  the  testimony  of  the  witni 
as  your  judgment  dictates,  under  the  facts  and  circumstances 
as  developed.  You  are  the  sole  judges  of  the  credibility  of 
witnesses,  and  may  give  them  such  credit  as  seems  proper  under 
all  the  circumstances,  considering  their  interest  or  want  of  in- 
terest in  the  case,  their  ability  to  learn,  know  and  relate  the  facts. 

3.  Negligence  defined,  and  duty  of  defendants  stated.  The 
defendants  are  charged  with  negligence. 

Negligence  is  the  failure  to  observe  for  the  protection  of  the 
interests  of  another  that  degree  of  care,  protection  and  vigilance 
which  the  circumstances  reasonably  demand.  It  is  a  failure 
to  observe  ordinary  care  under  the  circumstances  of  the  particu- 
lar case, — this  case.  Ordinary  care  is  that  degree  of  '-are  which 
persons  of  ordinary  care  and  prudence  are  accustomed  to  ob- 
serve under  similar  circumstances.  Ordinary  care  in  this  case 
is  such  care  as  reasonablly  prudent  persons  would  observe  in 
setting  telephone  poles  close  to  street  car  tracks,  or  of  persons 
who  operate  street  cars,  as  a  master,  in  close  proximity  to  tele- 
phone poles,  for  the  protection  of  persons  engaged  in  operating 
the  cars. 

It  was  the  duty  of  the  defendant  railway  company  as  the 
employer  of  the  plaintiff  to  use  ordinary  care  and  prudence  to 
furnish  him  with  a  safe  place  to  work.  The  railway  company 
was  not  an  insurer  of  the  plaintiff's  safety;  it  being  hound 
merely  to  observe  ordinary  care  in  furnishing  him  with  a  safe 
place  to  work.  It  was  the  duty  of  the  defendant  railway  com- 
pany to  observe  ordinary  care  not.  to  run  and  operate  its  cars 
in  such  proximity  to  any  pole  or  poles  which  may  he  Located 
and  maintained  in  that  position  so  that  its  servants  in  ch 
of  the  operation  of  the  cars  an. I  in  the  observance  of  their  duty. 

who  are  at  the  time  observing  ordinary  care  ami  prudei for 

their  own  safety,  may  not  come   in   contact    therewith    and    he 


2112  INSTRUCTIONS   TO    JURY. 

injured  thereby.      This  duty  rests  upon  the  railway  company 
even  though  the  pole  cr  poles  were  placed  there  by  another  com- 
pany and  was  not  part  of  the  equipment  of  the  railway  company. 
•4.  Alternative  findings  by  jury  as  to  responsibility  of  railway 

company. 
If  the  jury  find  that  the  railway  company  used  ordinary  care 
to  furnish  a  safe  place  to  work,  and  that  it  maintained  a  safe 
place  for  plaintiff  to  work,  and  that  it  exercised  ordinary  care 
so  that  its  cars  were  not  run  in  such  close  proximity  to  any  pole 
or  poles  which  were  located  along  the  line  of  its  track  at  the 
place  in  question  in  this  case,  so  that  its  servant,  to-wit,  the 
plaintiff,  as  conductor  in  running  and  operating  the  car  in 
question  here,  himself  observing  ordinary  care  for  his  own 
safety,  could  not  come  in  contact  with  the  pole  in  question, 
then  the  railway  company  can  not  be  held  liable  for  any  damages 
which  the  plaintiff  may  have  sustained  by  coming  in  contact 
with  the  pole,  and  your  verdict  should  be  in  favor  of  the  railway 
company  in  such  case. 

Hut  if  you  find  that  the  railway  company  did  not  exercise 
such  care,  that  it  was  guilty  of  negligence,  and  if  you  find  that 
such  negligence  was  the  proximate  cause  of  the  injury  to  the 
plaintiff,  and  that  the  injury  was  not  caused  by  the  plaintiff's 
sole  negligence,  and  you  further  find  that  the  plaintiff  did  not 
voluntarily  assume  the  risk  from  injury  from  the  pole,  with  full 
knowledge  of  its  dangerous  proximity  to  the  track  and  passing 
cars,  and  with  competent  means  of  obtaining  such  knowledge, 
then  the  plaintiff  is  entitled  to  recover  against  the  defendant, 
the  railway  company,  and  a  verdict  at  your  hands. 

5.  Knowledge  of  danger — Assumption  of  risk  by  plaintiff.  If 
the  plaintiff  knew  of  the  dangerous  proximity  of  the  pole  to 
the  track,  or  if  by  the  exercise  of  ordinary  care  he  could  have 
known  of  it,  and  if  he  continued  to  work  for  the  defendant  upon 
the  car  as  conductor  with  such  knowledge,  then  he  must  be  held 
to  have  assumed  the  risk  of  injury  by  coming  in  contact  with 
the  pole,  and  the  plaintiff  will  not  in  such  case  be  entitled  to 
recover  against  the  defendant,  the  railway  company. 


STREET  RAILWAYS.  2113 

In  determining  the  question  of  assumption  of  risk  by  the 
plaintiff,  the  jury  will  consider  whether  the  alleged  danger  was 
an  apparent  or  concealed  one,  the  care  required  of  him  in  either 
case  being  ordinary  care,  varying  with  the  circumstances.  The 
plaintiff  must  be  charged  with  knowledge  of  dangers  such  as  is 
involved  in  this  case  only  so  far  as  he  would  ordinarily  obtain 
knowledge  thereof  in  the  performance  of  the  duties  required  of 
him  in  his  employment. 

6.  Legal  obligation  of  telephone  company.  The  Legal  obliga- 
tion resting  upon  the  defendant,  the  telephone  company,  was 
to  exercise  ordinary  care  in  locating  and  maintaining  its  poles, 
and  the  pole  in  question  here,  and  not  to  place  and  maintain 
them  in  such  dangerous  proximity  to  the  track  of  the  railway 
company,  and  that  the  same  shall  not  be  set  or  placed  and 
allowed  to  remain  in  such  close  proximity  to  the  track  that  the 
same  may  come  in  contact  with  the  servants  or  employes  <>l'  the 
railway  company  who  are  in  the  observance  of  ordinary  care 
for  their  own  safety  in  the  operation  of  their  cars  along  the  line 
of  such  railway  track,  and  which  pass  such  pole  or  poles. 

7.  Alternative  findings  by  jury  as  t<>  liability  of  teli  phone 
company.  If  the  jury  should  find  that  the  injury  resulted  from 
the  plaintiff's  coming  in  contact  with  a  telephone  pole,  ami  you 
should  find  that  the  telephone  company  was  not  guilty  of  negli- 
gence according  to  the  rules  of  law  stated  in  these  instruct  inns. 
that  would  relieve  the  railway  company  from  the  charge  of 
negligence,  because  the  negligence  claimed  by  plaintiff  against 
the  railway  company  is  the  non-observance  of  ordinary  care  in 
running  its  cars  in  such  close  proximity  to  the  poles  creeled  by 
the  telephone  company  as  to  endanger  the  safety  of  the  servants 
of  the  railway  company,  and  this  plaintiff,  who  are  in  the  ob- 
servance of  ordinary  care  for  their  own  protection;  SO  that  it. 
follows  that  if  you  find  neither  the  telephone  company  nor  the 
railway  company  to  have  been  negligen1  in  the  particulars 
claimed,  your  verdict  would  be  in  Eavor  of  both  the  railway 
company  and  the  telephone  company.     Bui  if  you  find  thai  hnth 


2114  INSTRUCTIONS   TO   JURY. 

the  telephone  company  and  the  railway  company  are  each  guilty 
of  negligence  under  the  rules  herein  given  you,  which  renders 
them  liable  in  damages  to  the  plaintiff,  and  that  the  injury  was 
not  caused  by  the  plaintiff's  sole  negligence,  your  verdict  should 
be  rendered  jointly  against  both  defendants  for  such  damages 
as  in  your  judgment  you  believe  plaintiff  to  have  sustained. 

If  such  be  your  verdict,  the  amount  assessed  should  be  a  lump 
sum,  without  apportionment  between  the  two  defendants. 

8.  Measure  of  damages.  If  you  find  the  plaintiff  is  entitled 
to  recover,  he  will  be  entitled  to  compensation  for  all  injuries 
which  naturally  resulted  from  the  wrongful  acts  of  the  defend- 
ant, for  the  pain  and  suffering  endured  by  him  as  a  consequence 
of  the  injury,  if  such  he  suffered,  for  the  loss  of  time  occasioned 
by  his  injury;  injury  to  his  health,  if  it  has  been  injured 
thereby;  the  pain  and  suffering  and  impairment  of  health  and 
earning  capacity,  if  any.  which  you  may  find  he  will  with  rea- 
sonable certainty  suffer  in  the  future.  He  will  also  be  entitled 
to  recover  the  reasonable  value  of  his  medicines  and  physician's 
services.1 

i  Rohr  v.  Columbus  Ry.  &  Lt.  Co.,  et  al,  Franklin  Co.  Com.  Pleas.     Kin- 
kead,  J. 


Sec.  2308.     Injury  to  passenger  while  assisting  driver  of  street 
car. 

"If  the  plaintiff  was  requested  by  the  driver  of  the  ear  to 
assist  in  pushing  it  back,  and  in  doing  so  was  injured  by  the 
negligence  or  carelessness  of  the  driver  of  the  car  on  which  he 
had  been  riding,  or  of  another  car,  he  can  recover  if  such  assist- 
ance was  apparently  necessary.  Or  if  there  was  an  actual 
necessity  for  him  to  assist  the  driver  in  pushing  back  the  car, 
and  he  did  so  assist,  and  while  doing  so  was  injured  by  the 
negligence  of  the  driver  of  this  car  or  of  another,  he  can  recover, 
whether  he  was  requested  by  the  driver  to  assist  or  not. ' ' * 
i  From  Street  Railway  Company  r.   Bolton,  43  O.   S.  224. 


STREET  RAILWAYS.  2115 

Sec.  2309.  Bound  by  acts  of— Conductor  and  motorman  in 
scope  of  employment. 
In  general  the  passenger  carrier  is  bound  by  the  acts  of  its 
employees  and  agents  in  the  scope  of  their  employment,  and 
must  answer  for  their  negligent  or  wrongful  performance  in 
the  scope  of  their  employment.  In  other  words,  the  negligence 
of  the  conductor  and  motorman  of  this  car,  in  the  scope  of  their 
employment,  would  be  the  negligence  of  the  defendanl  com- 
pany, for  which  the  defendant  would  be  liable,  if  you  find  that 
they,  or  either  of  them,  were  negligent  in  the  performance  of 
their  duties  as  such  employees  and  agents  of  the  defendant,  in 
respect  to  the  negligence  charged.1 

i  Voris,  J.,  in  Sourek  v.  The  Akron  St.  Ry.  Co.,  Summit  Com.  Pleas.     Booth 
on  St.  Rys.,  sec.  372. 

Sec.  2310.    Reciprocal  rights  of  vehicles  and  street  cars. 

In  view  of  the  inability  of  the  cars  of  a  street  railway  com- 
pany to  leave  its  tracks,  it  is  the  duty  of  free  vehicles  no1  to 
obstruct  them  unnecessarily,  and  to  turn  to  on*'  side  when  they 
meet  them,  but  subject  to  that  and  to  the  respective  powers  of 
the  two,  a  car  and  a  wagon  owe  reciprocal  duties  to  use  reason 
able  care  on  each  side  to  avoid  collision.  Neither  has  a  righl  to 
assume  that  the  other  will  keep  out  of  the  way  at  its  peril,  al- 
though the  electric  car  has  a  right  to  demand  that  the  wagon 
shall  not  obstruct  it  by  unreasonable  delay  upon  the  track.1 

i  White  v.  Ry.  Co.,  167  Mass.  43;   Galbraith   v.    Ry.    <'<>.,    I6fi    Mast 
O'Brien  v.  Ry.,  186  Mass.  446. 

Sec.  2311.     Duty  of  driver  of  vehicle  to  look  before  crossing. 
The  jury  is  instructed  that  il  was  Hi"  duty  of  plaintiff  to  look- 
in  both  directions  as  he  approached street,  and  to  Belect 

such  a  point  from  which  to  look  as  to  enable  him  to  determine 
whether  a  car  was  coming,  and  if  the  jury  find  that  he  did  not 
so  look  and  that  his  failure  so  to  do  contributed  to  the  collision. 


2116  INSTRUCTIONS    TO    JURY. 

then  he  is  guilty  of   contributory  negligence,   and  he   can  not 

recover.1 

i  Blake  v.  R.  I.  Co.,  32  11.  I.  213,  78  Atl.  834,  Ann.  Cas.  1012,  D.  852. 
This  may  be  properly  applied  in  Ohio  under  peculiar  conditions  in 
congested  portions  of  a  city. 

Sec.  2312.     Duty  of  driver  to  stop  vehicle  before  crossing  track 
when  car  approaching,  when. 

The  jury  is  instructed  that  if  it  appears  from  the  evidence 
that  the  street  car  was  in  sight  of  the  plaintiff,  and  that  it  was 
approaching  at  a  high  rate  of  speed,  and  if  it  appears  that 
plaintiff's  vehicle  was  in  such  close  proximity  to  the  track,  that, 
considering  the  speed  of  the  car  and  the  position  of  the  vehicle, 
it  would  appear  from  such  circumstances  that  ordinary  care 
and  prudence  would  not  warrant  plaintiff  in  crossing  the  track, 
then  it  was  the  duty  of  the  plaintiff  to  have  stopped  his  vehicle. 
If  he  failed  so  to  do,  and  if  the  collision  was  brought  about  by 
his  own  neglect  in  this  respect,  he  can  not  recover.1 

)  Blake  v.  R.  I.  Co.,  32  R.  I.  213,  78  Atl.  834.  Ann.  Cas.  1012,  D.  852; 
Moon  v.  Tr.  Co.,  237,  Mo.  425,  141  S.  \Y.  870,  Ann.  Cas.  1913,  A.  183. 

Sec.  2313.     Collision  between  vehicle  and  street  car  at  street 
crossing. 

1.  Relative  rights  of  driver  of  vehicle  and  street  railway  at 

street  crossin</. 

2.  Specific  questions  of  negligence  involved. 

3.  Duty  of  driver  of  vehicle  in  exercise  of  his  correlative 

right. 

4.  Driver  of  vehicle  may  assume  that  motorman  will  exercise 

ordhiary  care. 

5.  Failure  of  driver  to  use  ordinary  care — or  if  he  miscal- 

culates. 

6.  Duty  of  railway  company  to  drivers  of  vehicles. 

7.  Motorman    observing    ordinary    care    may    assume    that 

driver  of  vehicle  will  use  same  care  in  crossing. 

8.  Alternative  findings  jury  may  make. 


STREET  RAILWAYS.  2117 

1.  Relative  rights  of  driver  of  vehicle  and  street  railway  at 
street  crossing.  The  rights  of  persons  driving  vehicles  in  the 
streets  of  a  city,  and  of  a  street  railway  operating  a  line  of  rail 
way  in  the  streets  are  reciprocal ;  that  is,  they  are  equal.  Neither 
has  a  superior  right,  excepting,  however,  as  particular  condi 
tions  and  circumstances  appearing  in  any  case  may  give  the 
one  or  the  other  the  superior  right  of  passage  on  a  particular 
occasion.  A  street  railway  company  owes  certain  specific  duties 
toward  persons  driving  across  its  tracks  at  street  intersections. 
Likewise,  persons  driving  vehicles  arc  bound  to  take  into  con 
sideration  the  nature  and  manner  of  the  running  of  cars  on  tin- 
streets  of  a  city,  and  they  must  use  ordinary  care  in  looking  oul 
for  their  own  safety.  The  driver  of  a  horse  must  take  into 
consideration  in  crossing  ahead  of  an  approaching  street  car 
the  fact  that  the  car  can  not  turn  out  of  the  course  on  the  I  racks  ; 
that  it  must  remain  on  the  rails.  He  is  bound  to  know  that  the 
car  can  not  generally  be  stopped  instantly  and  that  the  ability 
to  stop  the  car  in  order  to  avoid  colliding  with  him  depends 
upon  the  rate  of  speed  which  it  is  running  when  the  same  is 
reasonable  and  not  immoderate.  A  driver  has  a  right  to  rely 
upon  the  observance  of  the  duty  that  the  car  will  he  run  at  a 
moderate,  reasonable  rate  of  speed,  and  that  it  will  not  he  run 
at  an  unreasonable  and  immoderate  rate  of  speed,  and  that  is 
to  be  considered  in  connection  with  the  duty  which  the  law 
imposes  upon  a  driver  of  a  vehicle  in  attempting  to  cross  a  track 
in  front  of  an  approaching  car. 

2.  Specific  questions  of  negligence  involved.    The  specific  ques- 
tions  presented  by  the  pleadings  and  the  evidence  are  whether 
neither  of  the  parties  were  at  fault  and  the  injury  was  a  result 
of  pure  accident,  or  whether  the  injury  was  tin    result  of  plain 
tiff's  own  negligence,  or  of  that  of  the  defendant     There  is  no 
question  of  the  contributory  negligence  of  plaintiff  causing  the 
injury.     Contributory  negligence  is  a  term  which  is  well  under 
stood  in  law,  and  which  the  jury  might  not  so  readily  under 
stand.     Such  a  plea,  that  is  the  plea  of  contributory  negligence, 
when  interposed  by  a  defendant,  proceeds  upon  the  tacit  admis- 


2118  INSTRUCTIONS   TO    JURY. 

sion  that  the  defendant  itself  was  guilty  of  some  negligence  and 
that  the  neglect  of  the  plaintiff  contributed  as  the  direct  and 
proximate  cause  of  the  injury.  I  make  this  explanation  because 
of  the  claims  of  the  parties  in  this  case  for  the  purpose  of  draw- 
ing a  comparison  and  illustrating  the  point  clearly  to  the  jury. 
But  understand,  gentlemen,  that  no  such  plea  of  contributory 
negligence  is  made  by  the  defendant  in  this  case.  On  the  con- 
trary, the  plea  of  tbe  defendant  in  this  case  is  that  it  was  not 
guilty  of  any  negligence,  and  it  may  substantiate  that  plea  by 
showing  that  not  only  it  was  not  guilty  of  any  negligence,  but 
that  the  plaintiff  was  guilty  of  negligence  and  that  his  own  neg- 
ligence was  the  cause  of  the  injury.  So  that  you  can  see  the 
difference  between  a  plea  of  contributory  negligence  and  a  claim 
that  the  plaintiff  was  guilty  of  negligence  and  that  the  defendant 
was  not  guilty  of  any  negligence. 

3.  Duty  of  drivt  r  of  vehiclt  in  ext  r<  ise  of  Ids  correlative  right. 
In  the  exercise  of  his  equal  right  in  the  street,  that  is  the  plain- 
tiff's keeping  in  mind  as  he  must  do  the  fact  of  the  nature 
and  manner  of  running  street  cars  on  the  rails  in  the  streets 
of  a  city,  the  speed  at  which  they  are  run  when  not  excessive, 
as  compared  with  the  speed  of  a  heavily  loaded  wagon,  as  well 
as  the  ability  or  inability  to  stop  the  cars  in  order  to  avoid 
injury,  the  driver  of  a  vehicle,  in  the  exercise  of  ordinary  care 
for  his  own  safety,  has  the  right  to  cross  the  track  of  a  street 
railroad  even  though  he  observes  a  car  approaching,  provided 
there  is  a  reasonable  opportunity  for  him  to  cross  in  the  exercise 
of  ordinary  care  without  obstructing  the  passage  of  the  car 
unnecessarily;  and  provided  further,  that  the  driver  does  not 
undertake  to  cross  the  tracks  in  front  of  the  approaching  car 
in  such  close  proximity  to  the  car  at  the  time  he  attempts  to 
cross  that  the  motorman  may  not,  if  running  at  a  lawful  and 
ordinary  rate  of  speed,  be  able,  by  the  exercise  of  ordinary  care, 
to  avoid  collision  with  the  vehicle. 

4.  Driver  of  vehicle  may  assume  that  motorman  will  exercise 
ordinary  care.  The  driver  of  the  vehicle,  in  attempting  to  cross 
the  track  under  such  circumstances,  and  while  observing  ordi- 
nary care,  keeping  in  mind  the  considerations  already  mentioned, 


STREET  RAILWAYS.  211 9 

has  the  right  to  act  upon  the  presumption  that  the  motorman  in 
charge  of  the  car  will  himself  observe  ordinary  ran-  in  the  man- 
agement and  control  of  the  car,  and  that  lie  will,  that  is,  the 
motorman  will,  observe  the  rights  of  the  drivers  of  vehicles 
who  are  in  the  proper  exercise  of  their  reciprocal  rights  in  the 
streets. 

5.  Failure  of  driver  to  use  ordinary  can  ,  or  if  In  miscalculaU  s. 
If  the  driver  fails  to  observe  the  ordinary  care  required  of  him, 
and  by  reason  of  such  neglect  he  miscalculates,  or,  it'  he  fails  t<> 
observe  the  approach  of  the  ear  and  passes  in  front  of  the  ap- 
proaching car  in  such  close  proximity  thereto  as  that  the  motor- 
man  by  the  exercise  of  ordinary  care  in  ohserving  a  lookout  ami 
while  running  at  a  lawful  rate  of  speed,  and  having  the  car  under 
reasonable  control,  can  not  stop  his  car  in  time  to  avoid  tin-  col- 
lision and  injury,  using  ordinary  care  to  do  so,  ami  the  car 

not  run  into  the  vehicle  and  injure  the  driver,  the  latter  can  not 
in  such  case  recover.  Now,  gentlemen,  these  are  the  general 
doctrines  and  rules  of  lawr  which  the  court  gives  yon  as  applic- 
able to  the  facts  and  circumstances  and  the  respective  claims 
of  the  parties  in  this  case.  The  plaintiff  may  not  recover  com 
pensation  for  any  damages  which  he  might  have  avoided  by  the 
use  of  ordinary  care  under  the  circumstances.  It*  you  find  that 
plaintiff  did  not  observe  ordinary  care  under  the  rules  given 
you  and  that  by  his  failure  and  neglect  he  exposed  himself  to 
the  hazards  and  dangers  which  ordinary  prudence  forbid  him 
so  to  do,  or  which  reasonably  ought  to  have  been  known  to  him. 
and  that  his  own  neglect  in  these  respects  was  the  cause  of  his 
injury,  then  he  is  not  entitled  to  recover  ami  your  verdict  should 
in  such  case  be  for  the  defendant. 

"We  come  now  to  the  charges  of  negligence  against  the  defend 
ant. 

6.  Duty  of  railway  company  to  drivi  rs  of  vt  lii<  h  s.  As  already 
stated,  the  railway  company  has  equal  rights  in  the  Btreeta  with 
the  plaintiff,  but  the  railway  company  in  the  operation  of  its  cars, 
owes  a  duty  toward  drivers  of  vehicles  who  may  be  crossing  its 
tracks  at  street  intersections  when  it  is  in  the  acl  of  approaching 


2120  INSTRUCTIONS   TO   JURY. 

the  same.  It  is  the  duty  of  the  railway  company,  and  it  was  the 
duty  of  the  defendant  in  this  case  in  the  running  of  its  car  upon 
approaching  a  street  intersection,  and  the  street  in  question 
here,  or  crossing,  to  run  at  a  lawful  and  reasonable  rate  of  speed. 
And  it  is  bound  to  use  ordinary  care  and  prudence  in  the  man- 
agement and  control  of  its  cars,  to  keep  the  same  under  such 
reasonable  control  as  not  to  endanger  the  safety  of  a  person  driv- 
ing a  vehicle  across  the  track,  the  latter  using  ordinary  care 
at  the  time.  In  other  words,  it  is  the  duty  of  the  railway  com- 
pany to  approach  the  street  intersection  at  such  reasonable  rate 
of  speed,  and  the  motorman  is  required  to  be  on  the  lookout  for 
the  welfare  and  safety  of  persons  driving  vehicles  at  a  street 
crossing,  and  signals  and  warnings  must  be  given,  and  it  must 
use  ordinary  care  in  having  such  reasonable  control  of  the  car 
as  may  enable  it  to  avoid  colliding  with  vehicles  lawfully  and 
prudently  passing  across  the  tracks.  And  if  ordinary  care 
requires  it  under  the  circumstances,  it  should  check  the  speed 
or  stop  the  car.  Whether  or  not  ordinary  care  requires  a  car 
to  be  stopped  under  a  given  state  of  circumstances,  or  whether 
the  failure  to  stop  the  car  in  time  to  avoid  an  injury  to  a  person 
driving  a  vehicle  by  collision  under  a  given  state  of  circum- 
stances, in  this  case,  for  instance,  is  a  question  of  fact  entirely 
within  the  province  of  this  jury  to  decide  according  to  the  cir- 
cumstances in  this  case  and  by  the  application  of  the  general 
doctrines  governing  the  rights  and  the  duties  of  the  parties  in 
this  case  as  given  the  jury  by  the  court, 

7.  Motorman  observing  ordinary  can  may  assume  that  driver 
of  vehicle  will  use  same  care  in  crossing.  If  the  motorman  in 
charge  of  the  car  of  the  defendant  was  traveling  at  a  moderate 
and  reasonable  rate  of  speed  and  was  at  the  time  observing 
ordinary  care  in  the  operation  of  the  car,  and  if  he  had  the 
same  under  reasonable  control,  upon  sounding  the  gong  and 
giving  warning  of  the  approach  of  the  car,  he  had  the  ri^ht  to 
proceed  to  the  street  intersection  for  the  purpose  of  crossing 
the  same,  and  he  had  the  right  in  such  case  to  assume  or  pre- 


STREET  RAILWAYS.  J  121 

sume  that  if  anyone  was  approaching  the  crossing  or  was  Gear- 
ing and  in  plain  sight  of  the  approaching  car,  that  he  would 
have  his  vehicle  under  proper  control  and  would  himself  exer- 
cise ordinary  care  to  avoid  collision.  He  would  have  the  right 
to  presume  under  such  circumstances  that  the  driver  would 
stop  so  as  to  avoid  collision.  The  motorman  of  defendant  in 
this  case  had  a  right  to  assume  that  the  plaintiff  would  do  these 
things  in  this  case  in  crossing  the  track.  If,  therefore,  the 
motorman  was  observing  the  above  requirements  as  to  speed 
and  control  of  the  car,  if  he  sounded  his  gong  and  warned  plain- 
tiff of  the  approach  of  the  car,  and  if  he  acted  mistakenly  upon 
such  assumption  as  to  what  the  driver  should  do,  as  the  court 
has  explained  to  you,  the  motorman  then  in  such  case  can  not  be 
said  to  have  acted  negligently. 

8.  Alternative  findings  jury  may  make,  [f  the  defendant  was 
running  the  car  at  any  excessively  high  rate  of  speed,  and  if 
he  did  not  have  reasonable  control  of  the  ear,  and  if  he  was 
unable  for  these  reasons  to  stop  the  car  after  seeing  the  danger 
to  plaintiff  in  the  act  of  crossing  the  track  in  front  of  the  ap- 
proaching car,  and  if  the  collision  was  due  to  this  oeglecl  on 
the  part  of  the  defendant,  then  your  verdict  should  be  for  the 
plaintiff.  On  the  other  hand,  if  the  motorman  was  not  running 
at  an  immoderate  rate  of  speed,  and  if  he  did  have  reasonable 
control  of  the  car  and  could,  by  the  exercise  of  ordinary  care, 
approaching  car,  and  he  failed  under  such  circumstances  to 
after  discovering  plaintiff  in  the  act  of  passing  in  front  of  the 
observe  such  care  and  the  collision  resulted  from  such  failure 
on  the  part  of  the  defendant,  your  verdict  should  be  for  the 
plaintiff.  But  if,  on  the  other  hand,  you  find  thai  the  defendant 
was  running  the  car  at  a  moderate  and  reasonable  rate  of  speed, 
and  if  the  motorman  sounded  the  gong,  and  if  the  motorman. 
when  he  saw  the  plaintiff  in  a  place  of  danger  on  the  track,  in 
the  exercise  of  ordinary  care  did  everything  which  a  reasonably 
prudent  person  could  do  in  stopping  the  car  in  order  to  avoid 
a  collision  with  the  plaintiff's  wagon,  and  was  unable  to  do  K>, 


2122  INSTRUCTIONS   TO   JURY. 

then  in  such  case  plaintiff  may  not  recover  and  the  defendant 
in  such  case  is  entitled  to  your  verdict.1 

i  Schasbarger  v.  The  Col.  Ry.  &  Lt.  Co.,  Franklin  Co.  Com.  Pleas.     Kin- 
kead,  J. 

Sec.  2314.     Injury  to  driver  of  vehicle  at  street  crossing1. 

1.  Relative  rights  of  driver  of  vehicle  and  street  car. 

2.  Relative  duties  of  each. 

3.  When  driver  may  undertake  to  cross  track — His  duty. 

4.  Conclusions  by  jury  as  to  conduct  of  plaintiff. 

5.  Duty  of  company  to  persons  crossing  street  and  track  as 

to  speed,  control  of  car  and  signals. 

6.  Conclusion  of  jury  as  to  conduct  of  defendant. 

7.  Concurrent  negligence  of  plaintiff. 

8.  Proximate  cause. 

9.  Directions  as  to  verdict. 

10.  Traffic  ordinance  as  to  passage  of  vehicles  into  another 
xircet. 

1.  Relative  rights  of  driver  of  vehicle  and  street  car.  The 
rights  of  persons  driving  vehicles  in  the  streets  of  a  city,  and 
of  a  street  railway  operating  a  line  of  railway  in  the  streets 
are  reciprocal,  that  is,  they  are  equal.  Neither  has  a  superior 
right,  excepting,  however,  as  particular  conditions  and  circum- 
stances appearing  in  any  case  may  give  the  one  or  the  other  the 
superior  right  of  passage  on  a  particular  occasion. 

2.  Relative  duties  of  each.  A  street  railway  company  owes 
certain  specific  duties  towards  persons  driving  across  its  tracks 
at  street  intersections.  Likewise,  persons  driving  vehicles  are 
bound  to  take  into  consideration  the  nature  and  manner  of  the 
running  of  cars  on  the  streets  of  a  city,  and  they  must  use  ordi- 
nary care  in  looking  out  for  their  own  safety.      The  driver  of  a 

•horse  must  take  into  consideration  in  crossing  ahead  of  an 
approaching  street  car  the  fact  that  the  car  can  not  turn  out 
of  the  course  on  its  tracks;  that  it  must  remain  on  the  rails. 
Tie  is  bound  to  know  that  the  car  can  not  generally  be  stopped 
instantly,  and  that  the  ability  to  stop  the  car  in  order  to  avoid 
colliding  with  him  depends  upon  the  rate  of  speed  at  which  it 


STREET  RAILWAYS.  2123 

is  running  when  the  same  is  reasonable  and  not  immoderate. 
A  driver  has  a  right  to  rely  upon  the  observance  of  the  duty 
that  the  car  will  be  run  at  a  moderate  reasonable  rate  of  speed, 
and  that  it  will  not  be  run  at  an  unreasonable  and  immoderate 
rate  of  speed,  and  that  is  to  be  considered  in  connection  with 
the  duty  which  the  law  imposes  upon  the  driver  of  a  vehicle  in 
attempting  to  cross  a  track  in  front  of  an  approaching  car. 

3.  When  driver  may  undertake  to  cross  track — His  duty.  In 
the  exercise  of  his  equal  right  in  the  street,  the  plaintiff,  keeping 
in  mind  as  he  must,  the  facts  of  the  nature  and  manner  of  run- 
ning street  cars  on  the  rails  in  the  streets  of  the  city,  the  Bpeed 
at  which  they  are  run  when  not  excessive,  as  compared  with  tin- 
speed  of  a  heavily  loaded  wagon,  as  well  as  the  ability  or  inabil- 
ity to  stop  the  cars  in  order  to  avoid  injury,  the  driver  of  a 
vehicle,  in  the  exercise  of  ordinary  care  for  his  own  safety,  has 
the  right  to  cross  the  track  of  a  street  railroad  even  though  lie 
observes  a  car  approaching,  provided  there  is  a  reasonable  oppor- 
tunity for  him  to  cross  in  the  exercise  of  ordinary  care  without 
obstructing  the  passage  of  the  car  unnecessarily;  and  provided 
further,  that  the  driver  does  not  undertake  to  cross  tin-  track 
in  front  of  the  approaching  car  in  such  close  proximity  to  the 
car  at  the  time  he  attempts  to  cross  that  the  motorman  may  not, 
if  running  at  a  lawful  and  ordinary  rate  of  speed,  be  able,  by 
the  exercise  of  ordinary  care,  to  avoid  collision  with  the  vehicle. 
The  driver  of  the  vehicle  in  attempting  to  cross  the  track  ond<  r 
such  circumstances,  and  while  observing  ordinary  care,  keeping 
in  mind  the  considerations  already  mentioned,  has  the  right  to 
act  upon  the  presumption  that  the  motorman  in  charge  of  the 
car  will  himself  observe  ordinary  care  in  the  management  and 
control  of  the  car,  and  that  he  will,  that  is,  the  motorman  will, 
observe  the  rights  of  the  drivers  of  vehicles  who  are  in  the  proper 
exercise  of  their  reciprocal  rights  in  the  streets,  [f  the  driver 
fails  to  observe  the  ordinary  care  required  of  him,  and  by  reason 
of  such  neglect  be  miscalculates  and  passes  in  front  of  the  ap 
proaching  car  in  such  close  proximity  thereto  as  that  the  tnotor- 
man, by  the  exercise  of  ordinary  care  in  observing  a  lookout , 


2124  INSTRUCTIONS   TO   JURY. 

and  while  running  at  a  lawful  rate  of  speed,  and  having  the  car 
under  reasonable  control,  can  not  stop  his  car  in  time  to  avoid 
the  collision  and  injury,  using  ordinary  care  to  do  so,  and  the 
ear  does  run  into  the  vehicle  and  injure  the  driver,  the  latter 
can  not,  in  such  case,  recover. 

4.  Conclusions  by  jury  as  to  conduct  of  plaintiff.  Now  these, 
gentlemen,  are  the  general  doctrines  and  rules  of  law  which  the 
court  gives  you  as  applicable  to  the  facts  and  circumstances  and 
respective  claims  of  the  parties  in  this  case.  The  plaintiff  may 
not  recover  compensation  for  any  damages  which  he  might  have 
avoided  by  the  use  of  ordinary  care  under  the  circumstances. 
If  you  find  that  plaintiff  did  not  observe  ordinary  care  and  the 
rules  of  law  given  you,  and  that  by  his  failure  and  neglect  he 
exposed  himself  to  the  hazards  and  dangers  which  ordinary 
prudence  forbid  him  so  to  do,  or  which  reasonably  ought  to  have 
been  known  to  him,  and  that  his  own  neglect  in  these  respects 
was  the  cause  of  his  injury,  then  he  is  not  entitled  to  recover, 
and  your  verdict  would  in  such  case  be  for  the  defendant. 

5.  Duty  of  company  to  persons  crossing  street  and  track  as  to 
speed,  control  of  car,  and  signals.  We  come  now  to  the  charges 
of  negligence  made  by  the  plaintiff  against  the  defendant.  As 
already  stated,  the  railway  company  has  equal  rights  in  the 
streets  of  a  city,  but  the  railway  company,  in  the  operation  of 
its  cars,  owes  a  duty  towards  travelers  and  vehicles  who  may 
be  crossing  its  tracks  at  street  intersections  when  it  is  in  the 
act  of  approaching  the  same.  It  is  the  duty  of  the  railway 
company,  and  it  was  the  duty  of  the  defendant  in  this  case  in 
the  running  of  its  cars,  upon  approaching  the  street  intersection 
or  crossing,  to  run  at  a  lawful  and  reasonable  rate  of  speed,  and 
it  was  bound  to  use  ordinary  care  and  prudence  in  the  manage- 
ment and  control  of  its  cars,  to  keep  the  same  under  such  reason- 
able control  as  not  to  endanger  the  safety  of  a  person  driving 
a  vehicle  across  the  track,  the  latter  using  ordinary  care  at  the 
time  In  other  words,  it  is  the  duty  of  the  railway  company 
to  approach  the  street  intersection  at  such  reasonable  rate  of 
epeed,  and  the  motorman  is  required  to  be  on  the  lookout  for 


STREET  RAILWAYS.  2125 

the  welfare  and  safety  of  persons  driving  vehicles  at  a  street 
crossing,  and  signals  and  warnings  must  be  given,  and  it  must 
use  ordinary  care  in  having  such  reasonable  control  of  the  car 
as  may  enable  it  to  avoid  colliding  with  vehicles  lawfully  and 
prudently  passing  across  the  street,  and  if  ordinary  care  re- 
quires it  under  the  circumstances,  it  should  check  the  speed  or 
stop  the  car.  Whether  or  not  ordinary  care  requires  a  car  to 
be  stopped  under  a  given  state  of  circumstances,  or  whether 
the  failure  to  stop  the  car  in  time  to  avoid  an  injury  to  a  person 
driving  a  vehicle  by  collision  under  a  given  state  of  circum- 
stances, in  this  case,  for  instance,  is  a  question  of  fact  entirely 
within  the  province  of  this  jury  to  decide  according  to  the  cir- 
cumstances in  this  case,  and  by  the  application  of  the  general 
doctrines  governing  the  rights  and  the  duties  of  the  parties  in 
this  case  as  given  the  jury  by  the  court.  If  the  motorman  in 
charge  of  the  car  of  the  defendant  was  traveling  at  a  moderate 
and  reasonable  rate  of  speed,  and  was  at  the  time  observing  ordi- 
nary care  in  the  operation  of  the  car,  and  if  he  had  the  same  under 
reasonable  control,  upon  sounding  the  gong  and  giving  warning 
of  the  approach  of  the  car,  he  had  the  right  to  proceed  at  the 
street  intersection  for  the  purpose  of  crossing  the  same,  and  he 
had  the  right  in  such  case  to  assume  or  presume  that  if  any  one 
was  approaching  the  crossing,  or  was  near  it  and  in  plain  sight 
of  the  approaching  car,  that  he  would  have  his  vehicle  under 
proper  control  and  would  himself  exercise  ordinary  care  to 
avoid  collision.  He  would  have  the  right  to  presume  under 
such  circumstances  that  the  driver  would  stop  so  as  to  avoid 
collision.  The  motorman  of  defendant  in  this  case  had  the 
right  to  assume  that  the  plaintiff  would  do  the  same  in  this 
case  in  crossing  the  track. 

6.  Conclusion  of  jury  as  to  conduct  of  defendant.  If,  there- 
fore, the  motorman  was  observing  the  above  requirements  as  to 
speed  and  control  of  the  car,  if  he  sounded  his  gong  and  warned 
plaintiff  of  the  approach  of  the  car,  and  if  he  acted  mistakenly 
upon  such  assumption  as  to  what  the  driver  should  do,  as  the 
court  has  explained  to  you,  the  motorman  then  in  such  case 
can  not  be  said  to  have  acted  negligently.      If  the  defendant 


2126  INSTRUCTIONS   TO   JURY. 

was  running  the  car  at  an  excessive  rate  of  speed,  and  if  he  did 
not  have  reasonable  control  of  the  car,  if  he  was  unable  for  these 
reasons  to  stop  the  car  after  seeing  the  danger  to  plaintiff  in 
the  act  of  crossing  the  track  in  front  of  the  approaching  car, 
and  if  the  collision  was  due  to  this  neglect  on  the  part  of  the 
defendant,  then  your  verdict  should  be  for  the  plaintiff.  On 
the  other  hand,  if  the  motorman  was  not  running  at  an  immod- 
erate rate  of  speed,  and  if  he  did  have  reasonable  control  of  the 
car  and  could,  by  the  exercise  of  ordinary  care,  have  discovered 
plaintiff  in  the  act  of  passing  in  front  of  the  approaching  car, 
and  he  failed  under  such  circumstances  to  observe  such  care, 
and  the  collision  resulted  from  such  failure  on  the  part  of  the 
defendant,  your  verdict  should  be  for  the  plaintiff.  But  if,  on 
the  other  hand,  you  find  that  the  defendant  was  running  the  car 
at  a  moderate  and  reasonable  rate  of  speed,  and  if  the  motor- 
man  sounded  the  gong,  and  if  the  motorman,  when  he  saw  the 
plaintiff  in  a  place  of  danger  on  the  track,  in  the  exercise  of 
ordinary  care  did  everything  which  a  reasonably  prudent  person 
could  do  in  stopping  the  car  in  order  to  avoid  a  collision  with 
the  plaintiff's  wagon,  and  was  unable  to  do  so,  then  in  such  case 
plaintiff  may  not  recover  and  the  defendant  in  that  event  is 
entitled  to  your  verdict. 

7.  Concurrent  negligence  of  plaintiff.  Some  claim  is  made 
in  evidence  and  argument  that  if  it  should  appear  from  the  evi- 
dence that  the  defendant  was  guilty  of  some  negligence  as 
charged,  that  the  plaintiff  himself  was  also  guilty  of  negligence 
which  was  concurrent  with  any  negligence  of  which  the  jury 
as  to  this  matter  in  the  requests  made  by  the  defendant  before 
argument,  and  it  will  now  further  say  to  you,  that  if  you  find 
that  both  plaintiff  and  defendant  were  guilty  of  negligence,  and 
that  the  negligence  of  both  was  contemporaneous  and  continu- 
ing until  after  the  injury,  and  that  the  negligence  of  each  was 
a  direct  cause  of  the  injury,  without  which  it  would  not  have 
occurred,  plaintiff  may  not  recover,  and  your  verdict  should  be 
for  the  defendant.  But  if  you  find  that  the  negligence  of  the 
plaintiff,  if  he  was  guilty  of  negligence,  was  not  contemporane- 


STREET  RAILWAYS.  2127 

ous  and  continuing,  as  stated,  you  will  then  determine  whether 
the  negligence  of  plaintiff  or  of  the  defendant  was  the  proximate 
cause  of  the  injury. 

8.  Proximate  cause.  The  law  regards  only  the  proximate 
cause,  attaching  legal  consequences  thereto.  Consequently  the 
jury  must  understand  the  meaning  of  the  term. 

The  proximate  cause  of  an  injury  is  that  cause  which,  in  a 
natural  and  continuous  sequence,  unbroken  by  any  new,  inde- 
pendent cause,  produces  the  injury,  and  without  which  the 
injury  would  not  have  occurred. 

9.  Directions  as  to  verdict.  Under  the  rules  given  you  con- 
cerning the  alleged  negligence  of  both  plaintiff  and  defendant, 
the  jury  is  instructed  that  if  you  should  find  that  the  plaintiff 
was  guilty  of  negligence  in  any  of  the  particulars  charged,  and 
the  defendant  was  also  guilty  of  negligence,  but  that  the  negli- 
gence of  plaintiff  was  not  contemporaneous  nor  continuing  with 
that  of  the  defendant,  and  that  the  plaintiff's  negligence,  without 
the  intervention  of  the  negligent  acts  of  the  defendant  would  not 
have  produced  the  injury,  and  that  the  negligence  of  the  defend- 
ant in  such  case  was  a  new  and  independent  cause,  without  which 
the  injury  would  not  have  occurred,  and  that  the  same  produced 
the  injury,  your  verdict  should  be  for  the  plaintiff. 

But  if  you  find  that  the  negligence  of  the  plaintiff  was  not 
concurrent  with  that  of  the  defendant,  that  there  was  no  inter- 
vening, new  or  independent  negligence  of  the  defendant,  pro- 
ducing the  injury,  your  verdict  should  be  for  the  defendant. 

10.  Traffic  ordinance  as  to  passage  of  vehicles  into  another 
street.  A  traffic  ordinance  passed  by  the  city  council  of  the  city 
of  Columbus,  regulating  the  conduct  of  drivers  of  vehicles  upon 
the  streets  of  the  city,  has  been  offered  in  evidence,  the  provisions! 
of  which  require  vehicles  turning  to  the  left  into  another  street, 
alley  or  thoroughfare,  shall  pass  to  the  right  of  and  beyond  the 
center  of  the  street  intersection  before  turning,  and  other  pro- 
visions which  have  been  offered  in  evidence  and  read  to  you. 

This  ordinance  is  permitted  to  go  to  you  as  evidence  touching 
the  question  of  the  conduct  of  the  plaintiff,  which  it  is  claimed 
constitutes  negligence  on  his  part,  and  may  be  considered  by 


2128  INSTRUCTIONS   TO   JURY. 

you  on  the  question  whether  the  plaintiff  acted  prudently  or 
not  in  crossing  the  street  under  the  circumstances  as  shown  in 
the  evidence.  The  judgment  or  opinion  of  the  authorities  of 
the  city  of  Columbus  in  passing  this  ordinance,  prescribing 
what  they  may  deem  to  be  a  proper  rule  of  conduct  governing 
parties  in  such  cases,  is  not  as  matter  of  law  conclusive  upon 
your  judgment  in  determining  the  questions  of  fact  in  this  case. 
If,  however,  it  coincides  with  your  opinion  as  to  the  true  measure 
of  standard  of  conduct  to  be  exacted  of  drivers  of  vehicles  in 
such  cases  and  under  the  circumstances  of  this  case,  you  may 
adopt  it  and  act  upon  it  in  the  rendition  of  your  verdict.  But 
if  you  believe  from  all  the  evidence  in  the  case  that  it  does  not 
prescribe  the  proper  rule  or  standard  of  conduct  which  should 
be  applied  to  the  circumstances  in  this  case,  you  may  exercise 
your  own  judgment  in  the  matter.1 

i  Jaeger  v.  The  Columbus  Py.  &  Lt.  Company.  Franklin  Co.  Com.  Pleps. 
Kinkead.  J.  Effect  of  violation  of  ordinance.  Meek  v.  Penn  Co., 
38  O.  S.  632;   Hoppe  v.  Parmalee,  20  C.  C.  303. 

Sec.  2315.  Injury  to  passenger  in  hired  automobile  from  col- 
lision between  street  car  and  automobile — By 
joint  negligence  of  both — Action  against  both. 

1.  Statement  of  negligence  charged. 

2.  Neither  defendant  liable  for  negligence  of  other — Both 

liable  if  their  concurrent  negligence  cause  injury. 

3.  Plaintiff  must  be  free  from  negligence — Ride  and  burden 

of  proof. 

4.  Negligence — Duty  of  motorman  and  driver  of  automobile. 

5.  Reciprocal  rights  and.  duties  of  each. 

6.  Same — Duly  as  to  discovery  of  intent  of  auto  driver  to 

cross  street. 

7.  Directions  as  to  verdict. 

8.  Duty  of  driver  of  auto  to  plaintiff  as  its  passenger  in 

crossing  track — Whether  to  look  and  listen. 

9.  Negligence  of  auto  driver  not  imputable  to  plaintiff. 

10.  Ordinance  as  to  operation  of  cars  and  autos. 

11.  Statute  as  to  speed  of  auto. 


STREET  RAILWAYS.  2129 

12.  Summary  and  direction  as  to  verdict. 

13.  Damages. 

1.  Statement  of  negligence  charged.  The  jury  will  note  that 
the  defendants  are  not  both  charged  in  the  plaintiff's  amended 
petition  with  the  same  acts  of  negligence,  but  it  is  charged  as 
against  the  railroad  company  that  it  was  negligent  in  that  the 
said  street  car  was  being  operated  and  run  at  a  high  and  dan- 
gerous rate  of  speed ;  that  the  motorman  in  charge  of  said  car 
did  not  check  the  speed  of  the  same  at  said  street  intersection 
where  said  collision  occurred;  that  no  signal  or  warning  was 
given  of  the  approach  of  said  car;  that  the  motorman  of  said 
car  negligently  and  carelessly  failed  to  have  said  car  under 
control  at  said  street  intersection,  and  failed  and  neglected  to 
stop  said  car  when  he  saw,  or  by  the  exercise  of  ordinary  care 
could  have  seen  the  automobile  in  which  the  plaintiff  was  a 
passenger. 

And  the  defendant,  S.,  and  his  partner  were  charged  to  be 
negligent  in  that  the  operation  of  said  automobile  carelessly  and 
negligently  failed  to  keep  a  proper  lookout  for  said  approach- 
ing car  and  negligently  and  carelessly  propelled  said  automobile 
in  the  car  track  in  front  of  said  car. 

2.  Neither  defendant  liable  for  negligence  of  other— Both 
liable  if  their  concurrent  negligence  cause  injury.  The  court 
instructs  you  that  neither  of  the  defendants  can  be  held  liable 
for  the  negligent  act  or  acts  charged  against  the  other,  but 
each  defendant  is  to  be  held  liable  for  the  negligent  act  or  acts, 
if  any  are  proved,  which  are  charged  against  each  of  such  de- 
fendants. 

You  may,  if  the  evidence  justifies  it,  find  for  or  against  one  or 
both  of  the  defendants.  Before,  however,  you  will  be  warranted 
in  finding  against  both  of  the  defendants,  you  must  find  that 
the  injuries  of  which  she  complains  resulted  by  reason  of  one 
or  more  of  the  acts  of  negligence  of  one  defendanl  combined 
with  one  or  more  acts  of  negligence  of  the  other  defendant  pro- 
ducing the  injury;  in  other  words,  concurrent  acts  of  negli- 
gence of  both  defendants  and  producing  the  injuries  are  essen- 


2130'  INSTRUCTIONS    TO   JURY. 

tial  to  render  both  liable;    and  not  the  several  negligent  acts,' 
if  any,  of  one  defendant. 

3.  Plaintiff  must  be  free  from  negligence — Rule  and  burden 
of  proof.  Again,  before  the  plaintiff  can  recover  it  is  essential 
that  she  be  free  from  negligence  on  her  part  producing,  or  con- 
tributing to,  her  injuries.  And  the  rules  of  proof  with  regard 
to  her  contributory  negligence,  if  any,  are  these:  The  burden 
of  proof  rests  upon  the  defendant  to  show  that  she  was  guilty 
of  contributory  negligence,  with  this  qualification,  that  if  the 
evidence  adduced  by  her  raises  a  presumption  that  she  was 
negligent  and  that  such  negligence  contributed  to  produce  the 
injury,  the  burden  rests  upon  her  to  remove  that  presumption ; 
for  the  law  is  that  when  the  circumstances  require  of  plaintiff 
the  exercise  of  due  care  to  avoid  the  injury,  and  plaintiff's  own 
negligence  directly  contributes  to  her  injury,  she  can  not  re- 
cover on  account  of  the  negligence  of  defendants,  for  the  law 
will  not  undertake  to  apportion  the  degree  of  negligence  as 
between  the  parties. 

4.  Negligence — Duty  of  motorman  and  driver  of  automobile. 
Negligence  is  defined  to  be  the  want  of  ordinary  care,  that  is, 
such  care  as  an  ordinarily  prudent  person  would  exercise  under 
the  same  or  similar  circumstances  and  surroundings.  Ordinary 
care  depends  upon  the  circumstances  of  each  particular  case, 
and  should  be  commensurate  with  the  danger  reasonably  to  be 
apprehended  from  a  lack  of  proper  prudence.  This  definition 
of  negligence  applies  to  both  plaintiff  and  the  defendants,  and 
will  be  used  by  you  in  determining  whether  either  of  the  parties 
was  negligent. 

It  was  the  duty  of  the  niotorman  of  the  railway  company  in 
the  operation  of  its  car  at  the  intersection  of  these  two  streets 
as  well  as  it  was  the  duty  of  the  driver  of  the  auto  in  the  opera- 
tion of  the  auto  at  this  point,  to  exercise  that  degree  of  care 
which  an  ordinarily  prudent  and  careful  person  would  exercise 
under  like  circumstances,  to  avoid  danger  of  collision  at  the 
crossing.  And  neither  the  motorman  of  the  railway  company 
nor  the  driver  of  the  auto  had  the  right  to  operate  their  respec- 


STREET  RAILWAYS.  2131 

tive  conveyances  at  the  street  crossing  in  such  a  manner  as  to 
throw  all  the  burden  of  care  and  watchfulness  to  avoid  accidents 
upon  the  other.  It  was  the  duty  of  each  to  exercise  ordinary 
care  and  vigilance  to  avoid  accident  to  the  other. 

5.  Reciprocal  rights  and  duties  of  each.  The  driver  of  the 
automobile  and  the  street  railway  company  had  an  equal  right 
to  use  the  streets  at  the  intersection,  the  driver  of  the  auto,  how- 
ever, making  due  allowance  for  the  fact  that  the  street  car  ran 
upon  a  fixed  track  and  by  reason  of  its  greater  weight  was  less 
easy  to  check  or  stop  than  the  automobile.  With  this  difference 
in  the  mode  of  use,  their  rights  were  mutual  and  reciprocal  in 
the  use  of  the  streets  at  their  intersection.  A  duty  to  be  on  the 
lookout  to  avoid  danger  was  just  as  fully  imposed  upon  the  one 
as  upon  the  other,  and  it  was  the  duty  of  each  to  operate  their 
car  and  auto  respectively  with  reference  to  the  mutual  and  recip- 
rocal rights  of  the  other  using  the  streets  at  the  crossing.  The 
only  different  right  which  the  street  car  company  had,  arose  from 
the  necessity  of  the  car  confining  its  travel  to  the  tracks,  and  the 
consequent  inability  to  turn  out  to  avoid  collision. 

6.  Same — Duty  as  to  discovery  of  intent  of  driver  to  cross 
street.  If  the  street  car  was  being  operated  in  a  much  fre- 
quented part  of  the  city,  and  the  motorman  discovered,  or  by 
the  exercise  of  ordinary  care  should  have  discovered  that  the 
driver  of  the  automobile  was  about  to  cross  the  track  at  the 
crossing  in  front  of  the  car,  it  was  the  motorman 's  duty  to  use 
ordinary  vigilance  to  stop  or  check  the  car  in  order  to  avoid  a 
collision;  and  if  he  did  not  exercise  such  vigilance,  and  by 
reason  thereof  the  collision  occurred,  you  will  be  justified  in 
finding  that  the  railroad  company  was  negligent.  Under  like 
circumstances,  if  the  driver  of  the  automobile,  being  about  to 
make  the  crossing,  discovered  or  by  the  exercise  of  ordinary  care 
should  have  discovered  that  the  street  car  was  about  to  cross 
at  the  intersection  of  the  two  streets  in  front  of  the  automobile, 
it  was  the  duty  of  the  driver  of  the  automobile  to  use  ordinary 
vigilance  to  stop  or  check  his  machine  in  order  to  avoid  the 
collision,  and  if  he  did  not  exercise  such  vigilance,  and  by  reason 


2132  INSTRUCTIONS   TO   JURY. 

thereof  the  collision  occurred,  you  will  be  warranted  in  finding 
that  the  defendant,  S.,  was  negligent. 

7.  Directions  as  to  verdict.  On  the  other  hand,  if  the  motor- 
man  of  the  railway  company  and  the  driver  of  the  auto,  or 
either  of  them,  did  exercise  that  degree  of  care  and  vigilance 
in  operating  their  respective  means  of  conveyance,  as  they  ap- 
proached and  were  about  to  go  over  the  intersection  of  these 
two  streets,  you  will  be  justified  in  finding  that  the  defendant 
or  defendants  so  exercising  such  care  and  vigilance  were  not 
negligent. 

You  will,  therefore,  consider  the  evidence  adduced  and  de- 
termine, so  far  as  the  railway  company  is  concerned,  whether 
or  not  it  was  negligent  in  operating  its  car  at  this  intersection 
at  a  high  and  dangerous  rate  of  speed,  or  whether  or  not  the 
motorman  slackened  the  speed  of  the  car,  or  gave  any  signal  or 
warning  of  his  approach,  or  negligently  failed  to  stop  the  car 
when  he  saw,  or  by  the  exercise  of  ordinary  care  could  have 
seen  the  automobile  in  time  to  have  avoided  the  collision.  If 
you  resolve  all  of  these  questions  in  favor  of  the  defendant 
company  yon  will  find  it  not  negligent,  and  your  verdict  will 
be  for  the  defendant  railway  company.  But  if  you  determine 
from  a  preponderance  of  the  evidence  any  one  or  more  of  these 
questions  in  favor  of  the  plaintiff  and  against  the  defendant 
company,  you  will  be  justified  in  finding  that  the  defendant 
railway  company  was  negligent. 

You  will  also  consider  the  evidence  adduced,  and  determine, 
so  far  as  the  garage  company  is  concerned,  whether  or  not  the 
operator  of  the  auto  was  negligent  in  that  he  failed  to  keep  a 
proper  lookout  for  the  approaching  car,  or  carelessly  and  negli- 
gently propelled  his  automobile  on  the  car  track  in  front  of  the 
said  car.  If  you  determine  both  of  these  questions  in  favor 
of  the  garage  company  you  will  find  that  S.  was  not  negligent 
and  your  verdict  will  be  for  the  defendant,  S.  But  if  you  de- 
termine one  or  more  of  these  questions  in  favor  of  the  plaintiff 
and  against  the  defendant,  S.,  you  will  be  warranted  in  finding 
that  S.  was  negligent. 


STREET  RAILWAYS.  2133 

8.  Duty  of  driver  of  auto  to  plaintiff  as  its  passenger  in  cross- 
ing track — Whether  to  look  and  listen.  The  court  further  in- 
structs you  that  the  plaintiff  being  a  passenger  for  hire  in  the 
auto,  it  was  the  duty  of  the  auto  driver  to  exercise  ordinary 
care  for  her  safety  while  she  was  such  passenger.  And  while 
omission  by  a  driver  of  an  auto  about  to  drive  across  the  street 
railway  tracks  to  look  for  an  approaching  car  is  not  in  all  cases, 
as  a  matter  of  law,  negligence,  it  nevertheless  is  his  duty  to  exer- 
cise ordinary  vigilance  to  avoid  a  collision  with  the  car;  and 
whether  the  driver  of  the  auto  exercised  such  vigilance  or  not 
depends  upon  the  circumstances  and  surroundings  of  the  case. 
If  at  the  time  he  was  about  to  cross  the  track,  the  situation  and 
circumstances  then  surrounding  him  were  such  as  to  require  a 
person  in  the  exercise  of  ordinary  prudence  to  look  and  listen 
to  ascertain  whether  there  was  a  car  approaching"  and  in  close 
proximity  to  the  crossing,  and  he  failed  to  do  so,  then  he  was 
negligent.  On  the  other  hand,  if  the  circumstances  were  not 
such  as  to  require  him  to  look  or  listen,  he  would  not  be  negli- 
gent. 

In  considering  the  question  of  negligence  on  the  part  of  the 
auto  driver,  as  charged,  you  will  therefore  look  to  all  the  facts 
and  attendant  circumstances  and  determine  whether  they  were 
such  as  to  require  the  driver  to  look  for  an  approaching  car  as 
he  was  about  to  cross  the  track,  and  to  listen  for  signal  or  warn- 
ing, if  any,  of  the  car's  approach.  If  you  determine  that  under 
all  the  circumstances  it  was  his  duty  in  the  exercise  of  ordinary 
prudence,  to  look  or  listen,  or  do  both,  as  he  approached,  and 
he  did  not  do  so,  you  will  be  warranted  in  finding  that  the  driver 
was  negligent.  On  the  other  hand,  if  the  circumstances  did  not 
require  him  to  look  or  listen  on  approaching  the  track  before 
he  crossed,  you  will  be  justified  in  finding  he  was  not  negligent. 

9.  Negligence  of  auto  driver  not  imputed  to  plaintiff.  While 
the  negligence,  if  any,  of  the  automobile  driver  is  not  imputable 
to  the  plaintiff  as  a  passenger,  and  while  she  was  not  required 
to  exercise  the  same  watchfulness  as  the  driver  to  avoid  danger, 
she  could  not  rely  implicitly  on  the  care  of  the  driver,  when  in 


2134  INSTRUCTIONS   TO    JURY. 

a  position  to  see  and  apprehend  the  danger,  if  any,  but  it  was 
necessary  for  her  to  exercise  ordinary  care  for  her  own  safety, 
and  if  she  did  not  do  so,  and  in  consequence  of  her  failure  to 
exercise  such  care  she  was  injured,  she  cannot  recover,  even 
though  both  or  either  of  the  defendants  were  negligent  as  charged 
in  the  amended  petition,  and  such  negligence  contributed  to  pro- 
duce the  injuries. 

10.  Ordinance  as  to  operation  of  cars,  and  autos.  Certain  pro- 
visions of  an  ordinance  under  which  it  is  claimed  the  street  rail- 
way company  was  operating  its  cars  on  Jaeger  street  have  been 
offered  in  evidence,  relative  to  the  speed  of  the  cars,  their  con- 
trol, the  degree  of  watchfulness  required  of  the  company,  and 
the  like,  at  crossings;  and  evidence  has  been  offered  tending  to 
show  that  the  company  was  violating  these  provisions  at  the 
time  of  the  accident.  Whether  or  not  any  of  the  foregoing 
matters  have  been  sufficiently  shown  by  the  evidence  are  matters 
of  fact  for  your  determination,  of  which  the  court  has  nothing 
to  do.  However,  the  court  instructs  you  that  the  violation,  if 
at  all,  of  such  ordinance  is  not  as  matter  of  law,  conclusive 
evidence  of  negligence  on  the  part  of  the  railway  company,  but 
is  only  a  circumstance  taken  in  connection  with  all  other  evi- 
dence reflecting  upon  the  company's  alleged  negligence,  if  any. 

Furthermore,  provisions  of  an  ordinance  have  also  been  offered 
in  evidence  relative  to  the  mode  of  travel  on  the  public  streets  by 
automobiles  and  other  vehicles,  and  how  they  shall  turn  at  in- 
tersections to  go  from  one  street  into  another,  and  it  is  claimed 
that  the  automobile  driver  was  violating  this  ordinance  in  fail- 
ing to  turn  to  the  right  of  the  center  as  he  was  about  to  go  from 
one  street  to  the  other.  It  is  your  province  to  determine  whether 
or  not  he  Mas  at  the  time  of  the  accident  violating  this  ordinance, 
and  circumstance  to  be  considered  by  you  along  with  all  the 
negligence  on  the  part  of  the  automobile  driver,  but  was  a  fact 
and,  if  he  was,  such  violation  was  not  conclusive  evidence  of 
other  evidence  in  the  case  reflecting  upon  the  question  of  his 
alleged  negligence,  if  any.1 


»  Meek  v.  Penn.  Co.,  38  0.  S.  632. 


STREET  RAILWAYS.  2135 

11.  Statute  as  to  speed  of  auto.  The  statutes  of  this  state  also 
declare,  in  substance,  that  whoever  operates  a  motor  vehicle  on 
the  public  roads  or  highways  at  a  speed  greater  than  is  reason- 
able or  proper,  having  regard  for  width,  traffic,  use  and  the  gen- 
eral and  usual  rules  of  the  road  or  highway,  or  so  as  to  endanger 
the  property,  life  or  limb  of  any  person,  shall  be  guilty  of  a 
misdemeanor. 

The  statute  also  declares  that  whoever  operates  a  motor  vehicle 
at  a  greater  speed  than  eight  miles  an  hour  in  the  business  and 
closely  built  up  portions  of  a  municipality,  or  more  than  fifteen 
miles  an  hour  in  other  portions  thereof,  is  guilty  of  a  misde- 
meanor. 

Evidence  has  been  offered  tending  to  show  that  at  the  time  of 
the  accident  the  driver  of  the  automobile,  was  violating  these 
provisions  of  the  criminal  law,  and  other  evidence  is  offered  tend- 
ing to  show  that  neither  of  these  statutes  was  being  violated. 
Whether  or  not  the  evidence  so  shows  is  a  matter  of  fact  for 
your  determination  and  not  a  matter  for  the  court  to  pass  upon. 
Acts  in  violation  of  such  statutes,  in  the  absence  of  countervail- 
ing testimony  is  per  se  negligence  and  constitutes  a  prima  facie 
liability.  But  this,  of  course,  is  not  conclusive ;  where  there  is 
testimony  tending  to  show  that  the  acts  of  excessive  speed  did 
not  in  fact  proximately  cause  the  injury,  it  is  for  the  jury  to 
determine  what  did  in  fact  cause  the  injury. 

12.  Summary  and  direction  as  to*  verdict.  In  summing  up, 
the  court  instructs  you  that  if  you  find  that  the  defendants  or 
either  of  them  were  negligent  in  one  or  more  of  the  particulars 
alleged  in  the  amended  petition ;  that  the  separate  negligence 
of  one  defendant,  or  the  combined  and  concurrent  negligence 
of  both  defendants  directly  produced  the  injuries  or  some  of 
them  complained  of;  and  that  no  act  of  negligence  on  the  part 
of  plaintiff  produced,  or  contributed  to  produce  her  injuries,  or 
any  of  them,  it  will  be  your  duty  to  find  a  verdict  for  the  plain- 
tiff against  the  defendant  or  defendants  whose  negligence  pro- 
duced such  injuries. 

On  the  other  hand,  if  you  find  that  neither  of  the  defendants 
was  negligent,  or  if  negligent,  that  such  negligence  did  not  pro- 


2136 


INSTRUCTIONS    TO    JURY. 


duce  the  injuries  to  plaintiff,  or  that  the  plaintiff  herself  was 
negligent  and  such  negligence  either  produced,  or  contributed 
along  with  the  negligence  of  either  or  both  of  the  defendants 
to  produce  the  injuries,  you  will  return  your  verdict  for  the 
defendants. 

13.  Damages.  If  you  find  that  the  plaintiff  is  entitled  to  re- 
cover, your  verdict  should  be  in  her  favor  for  such  sum  as  dam- 
ages as  will  fairly  and  justly  compensate  her  for  the  injuries; 
the  measure  of  her  damages  is  compensation  and  only  compensa- 
tion. You  will  take  into  consideration  the  nature  of  the  injuries, 
the  extent  of  them,  the  pain  which  she  has  suffered,  all  the  neces- 
sary expense  which  she  has  necessarily  been  put  to  in  conse- 
quence of  the  injuries.  You  will  consider  the  effect  of  the  in- 
juries, the  permanency  of  it,  the  effect  of  the  injuries  upon  her 
bodily  strength  and  upon  her  capacity  to  labor  and  earn  a  living, 
and  all  the  other  facts  and  circumstances,  calmly  and  deliber- 
ately, and  apply  your  judgment  to  the  evidence  in  the  case. 
If  you  find  in  favor  of  the  plaintiff,  you  will  award  her  such 
damages  as  will  fairly  and  justly  compensate  her  for  the  injuries, 
not  to  exceed,  however,  the  amount  claimed  in  the  petition.1 
i  Kelly  v.  Cols.  Kv.  &  Light.     Franklin  Co.  Com.  Pleas.     Rogers,  J. 

Sec.  2316.     Street   car   colliding   with   automobile   stalled   on 
track  on  dark  night. 

1.  The  charge  of  negligence. 

2.  Duty  of  railway   company  when  automobile  stalled  on 

track  on  dark  night. 

3.  Same — Duty  on  discovery  of  auto  on  track  to  use  ordi- 

4.  Duty  of  person  in  charge  of  automobile. 

nary  care. 

5.  If  auto  driver  negligent — To  hold  railway  company,  it 

must  be  guilty  of  new  and  independant  act  of  negli- 
gence. 

6.  Speed  of  car — Opinion  of  witnesses  to  be  received  with 

caution. 

7.  Form  of  verdict. 

1.  The  charge  of  negligence.     The  charge  of  negligence  con- 
tained in  the  petition  is  that  defendant  was  running  at  a  high 


STREET  RAILWAYS.  2137 

rate  of  speed  of  about  thirty  miles  an  hour,  and  that  it  care- 
lessly, recklessly  and  negligently  ran  into  the  automobile.  The 
last  allegation,  that  the  defendant  carelessly,  recklessly  and  neg- 
ligently ran  into  the  automobile,  is  a  general  charge  of  negli- 
gence, it  does  not  specify  particularly  the  ground  of  negligence 
claimed.  But  it  is  sufficient  to  allow  the  case  to  be  tried  and 
to  go  to  the  jury,  and  the  court  will  direct  your  attention  to  the 
particular  claims  that  are  made  in  the  evidence,  even  though  they 
are  not  specifically  specified  in  the  petition. 

The  conceded  fact  upon  which  the  claim  of  negligence  in  this 
case  is  based  is,  that  the  automobile  of  plaintiff  had  stopped  on 
the  track  of  the  defendant  at  about  midnight,  on  a  dark  night, 
at  a  street  intersection  at  which  point  the  street  light  was  out. 
The  driver  of  the  auto  looked  backwards  and  became  aware  of 
the  approach  of  the  street  car  a  square  away  while  the  auto  was 
still  stalled  or  standing  on  the  track.  There  were  four  men  in 
the  auto,  and  whoever  made  the  effort  to  start  the  car  was  unable 
to  start  it ;  that  is,  was  unable  to  start  the  engine ;  and  the  evi- 
dence is  undisputed  that  no  effort  was  made  to  remove  the  car 
in  any  other  way  than  by  its  own  power.  It  is  undisputed  that 
a  police  officer  was  present  and  that  he  endeavored  to  signal 
the  approaching  car  to  stop.  The  question  of  where  he  stood, 
how  many  feet  away  from  the  auto  he  was,  is  a  question  which 
the  jury  must  decide. 

On  the  basis  of  the  conceded  facts  stated,  the  jury  will  deter- 
mine whether  the  injury  was  an  accident;  that  is,  whether  it 
was  without  anybody's  fault,  and  for  which  there  is  no  legal 
responsibility,  or  whether  it  was  caused  by  the  negligence  of 
the  defendant,  or  whether  it  was  caused  by  the  negligence  of 
the  servant  or  agent  of  the  plaintiff  who  was  in  charge  of  the 
car. 

2.  Duty  of  railway  company  when  automobile  stalled  on  track 
on  dark  night.  Where  an  automobile  is  standing  still  on  the 
track  of  a  street  railway  which  cannot  be  quickly  or  readily 
removed  therefrom  by  its  own  power  because  of  the  inability  of 
the  person  in  charge  of  it  to  start  the  engine,  nn<]  where  the 
night  is  dark,  and  the  street  light  at  the  streel  intersection  where 


2138  INSTRUCTIONS   TO  JURY. 

the  auto  is  standing  is  not  burning,  it  is  the  duty  of  those  in 
charge  of  a  street  car  which  is  being  run  along  the  street  car 
track  at  such  place,  to  use  ordinary  care  in  keeping  an  outlook 
to  discover  the  presence  of  persons  in  such  automobile  and  upon 
the  track  ahead  of  the  car.  And  if  the  servant  in  charge  of  the 
street  car,  in  the  exercise  of  ordinary  care  under  the  particular 
conditions  appearing  from  the  evidence,  is  unable  to  discover 
an  automobile  in  a  position  of  danger  on  the  tracks,  and  by  the 
exercise  of  ordinary  care  such  servant  of  the  defendant  is  unable 
to  discover  the  automobile  standing  on  the  track  ahead  of  the 
car  and  collides  with  the  same,  there  can  be  no  liability  on  the 
part  of  the  defendant. 

Now  that  rule  of  liability,  gentlemen,  you  will  observe  is  de- 
pendent upon  the  ultimate  fact  of  whether  ordinary  care  was 
used  by  the  servant  of  the  railway  company  in  discovering  the 
perilous  position  of  the  auto.  And  that  is  the  fact  for  the  jury 
to  find.  The  court  merely  states  the  rule  of  care  to  be  required 
of  the  motorman,  which  is  to  be  applied  by  the  jury. 

3.  Same — Duty  on  discovery  of  auto  on  trad;  to  use  ordinary 
care.  The  defendant  railway  company  may  be  held  liable  for 
colliding  with  an  automobile  standing  on  its  tracks,  as  the  one 
in  this  ease  was,  and  under  such  conditions  as  appear  from  the 
evidence  in  this  case,  only  if  it  fails  to  observe  either  one  of  two 
duties  or  obligations  which  the  law  imposes  upon  the  company. 
First:  if  it  fails  to  observe  ordinary  care  to  discover  persons 
and  vehicles  or  autos  in  a  position  of  danger  on  its  track,  and 
by  reason  of  such  want  of  care  on  its  part,  its  car  runs  into  such 
vehicle  or  auto,  it  is  liable  therefor,  if  its  negligence  in  this  re- 
spect, is  the  sole,  or  proximate  cause  of  the  collision  and  injury. 
Second:  if  the  servant,  or  the  motorman  in  charge  of  a  street 
car,  exercising  due  and  ordinary  care  actually  discovers  a  per- 
son and  vehicle  or  auto  on  the  track  in  a  position  of  danger, 
whether  such  dangerous  position  of  the  vehicle  is  due  to  pure 
accident  on  the  part  of  the  person  in  charge  of  the  auto,  or 
whether  it  is  due  to  his  negligence  in  allowing  it  to  remain  on 
the  track,  then  it  becomes  the  duty  of  the  railway  company  to 


STREET  RAILWAYS.  2139 

observe  such  ordinary  care  to  avoid  injury  by  collision  with  the 
auto  by  either  slacking  the  speed  or  by  stopping  the  car. 

The  law  places  the  responsibility  upon  a  motorman  of  avoid- 
ing injury, — that  is,  of  using  ordinary  care  in  avoiding  injury 
after  he  discovers  the  auto  in  a  position  of  danger.  The  evi- 
dence is  undisputed,  however,  that  a  policeman  gave  a  signal, 
but  the  motorman  states  that  he  endeavored  to  stop  and  did 
stop  the  car  after  he  saw  the  policeman,  and  that  he  did  not  see 
anything  else  but  the  police  officer.  Those  are  the  items  in  evi- 
dence to  which  the  jury  must  affix  legal  consequences,  if  there 
are  any  to  be  applied.  The  rule  of  law  applicable  to  the  sit- 
uation disclosed  in  the  evidence  is  that  after  the  motorman  saw 
the  policeman  from  the  car, — whether  he  observed  the  signal 
or  whether  he  did  not, — it  was  his  duty  to  observe  ordinary  care 
in  the  management  of  the  car  and  by  the  use  of  the  facilities 
which  he  had  at  hand  to  use  reasonable  care  to  stop  the  car. 
If  it  should  appear  to  the  jury  that  by  the  exercise  of  ordinary 
care,  and  in  the  use  of  the  appliances  at  hand,  he  could  have 
stopped  the  car  in  time  to  have  avoided  the  collision  we'th  the 
auto,  and  he  failed  to  do  that,  then  there  would  be  a  liability. 
But  if  after  seeing  the  police  officer  the  motorman  exercised  due 
care  and  used  all  of  the  appliances  that  he  could  and  did  all 
that  he  reasonably  could  under  the  circumstances  and  was  un- 
able to  stop  the  car,  and  did  not  see  the  auto,  nor  the  light  there- 
on, and  was  unable  by  the  exercise  of  due  care  to  stop  the  car 
in  time  to  avoid  the  colllision,  then  the  company  may  not  be  held 
liable  for  the  injury. 

4.  Duty  of  person-  in  cliarge  of  automobile.  The  attention 
of  the  jury  is  directed  to  the  conduct  of  the  servant  or  agent  in 
charge  of  the  automobile.  It  was  the  duty  of  such  servant  or 
agent  when  he  found  that  his  machine  would  not  readily  move 
by  the  power  of  its  engine,  to  take  such  steps  with  the  means 
at  hand  for  the  protection  of  the  machine  from  probably  colli- 
sion with  the  street  car, — especially  when  In-  knew  thai  die  ear 
was  approaching, — as  ordinary  care  and  prudence  required, 
eonsidering  the  conditions,  the  darkness  of  the  night,  the  number 
of  persons  in  company  with  the  servant  of  the  plaintiff,  their 


2140  INSTRUCTIONS   TO   JURY. 

knowledge  of  the  approaching  car,  the  ability  of  the  persons 
present  to  move  the  car  from  the  tracks. 

5.  //  auto  driver  negligent — To  hold  railway  company,  it  must 
be  guilty  of  new  and  independent  act  of  negligence.  If  it  should 
be  concluded  by  the  jury  that  the  servant  of  plaintiff  was  neg- 
ligent and  careless  in  the  handling  of  the  machine  and  in  pro- 
tecting the  same  from  collision,  to  hold  the  defendant  liable  for 
the  injury  in  such  case  it  must  be  established  by  the  evidence 
that  the  defendant  company  introduced  into  the  situation  a  new 
and  independent  act  of  negligence  without  which  there  would 
have  been  no  injury  committed,  and  such  act  must  be  regarded 
by  you  as  the  proximate  cause  of  the  collision  or  injury.1 

In  other  words,  if  plaintiff  was  guilty  of  negligence, — that  is, 
if  plaintiff  was  guilty  of  negligently  having  the  machine  on  the 
tracks  and  the  jury  should  find  that  the  motorman  could  or 
ought  to  have  discovered  the  peril  of  the  machine,  or,  that  hav- 
ing discovered  its  position  that  he  failed  to  use  ordinary  care  to 
avoid  the  collision  by  stopping  the  car,  then  either  the  act  of 
failing  to  discover  the  peril  of  the  auto,  or  the  failure  to  use 
ordinary  care  to  stop  the  car  after  discovering  it,  or  after  being 
signaled,  would  constitute  an  independent  act  of  negligence. 
But  either  failure  of  defendant  to  discover  the  machine,  or 
failure  to  use  ordinary  care  to  stop  its  car  after  being  signaled 
must  be  the  proximate  cause  of  the  injury  in  order  to  hold  it 
liable.  If  the  defendant  company's  motorman  was  unable  by 
the  exercise  of  ordinary  care  to  discover  the  auto  on  the  track, 
or  if  he  was  unable  after  being  signaled  by  the  officer  by  exercis- 
ing ordinary  care  to  stop  the  car,  then  the  company  was  not 
guilty  of  any  negligence  and  is  not  liable  for  the  injury. 

Negligence  as  applied  to  both  parties  in  this  case  is  the  failure 
of  either  to  exercise  ordinary  care  under  the  circumstances  in 
the  case.  In  deciding  the  question  whether  the  defendant  exer- 
cised ordinary  care  or  was  negligent,  the  jury  may  consider  the 
claim  made  by  the  parties  concerning  the  speed  of  the  car, 
whether  it  was  excessive  or  not,  whether  it  had  any  material 


STREET  RAILWAYS.  2141 

bearing  on  either  the  want  of  care  or  the  exercise  of  due  care 
on  the  part  of  the  defendant. 

6.  Speed  of  car — Opinion  of  witnesses  to  be  received  with 
caution.  On  this  question  the  jury  may  consider  the  ordinance 
of  the  city  and  the  opinions  of  the  witnesses  concerning  the 
speed.  As  the  opinion  of  non-expert  witnesses, — that  is,  those 
who  have  no  special  knowledge  of  the  speed  of  street  cars,  may 
be  formed  with  little  observation  and  scant  opportunity  to  ob- 
serve the  rate  of  speed  at  which  a  car  is  claimed  to  have  been 
running,  the  jury  should  receive  and  consider  such  evidence 
with  caution  and  circumspection.  If  it  should  appear  to  the 
jury  that  the  res  gestae, — that  is,  the  transaction  presented  by 
the  case, — renders  an  opinion  as  to  speed  impossible,  or  highly 
improbable  that  the  estimate  or  opinion  given  is  correct,  the 
jury  may  in  its  discretion,  reject  it.  Estimates  of  speed  are 
so  regarded  in  the  law  as  not  to  be  of  such  character  of  evidence 
as  to  be  considered  in  that  which  is  regarded  as  contradictory, 
or  such  as  to  be  considered  on  the  question  of  the  credibility 
of  witnesses ;  that  is,  in  case  of  conflicting  statements.  That 
means  one  witness  may  give  one  estimate  and  one  witness  will 
give  another  estimate,  and  in  hearing  and  considering  the  ques- 
tion of  credibility,  the  jury  would  not  be  warranted  in  con- 
sidering that  the  credibility  of  any  witness  was  affected  by  any 
expression  of  opinion  as  to  the  speed  of  a  car.  The  court  merely 
gives  you  these  precautionary  instructions  concerning  your  duty, 
and  the  matter  is  entirely  within  your  judgment  and  discretion, 
as  you  are  the  sole  judges  of  the  facts.2 

7.  Form  of  verdict.  The  court  lias  now  given  the  rules  of 
law  applicable  to  the  claims  of  each  party  to  the  action.  If  the 
jury  find  that  the  defendant  failed  to  use  ordinary  care,  and 
by  reason  of  such  failure  did  not  discover  the  auto  on  its  track, 
or  if  it  did  not  observe  ordinary  care  after  being  signaled,  and 
such  negligence  was  the  cause  of  the  injury,  your  verdict  should 
be  for  the  plaintiff,  and  in  such  case  you  will  assess  him  such 
damages  as  will  be  measured  by  the  nature  of  the  injury  as 
appears  in  the  evidence. 


2142  INSTRUCTIONS   TO   JURY. 

If  you  find  that  defendant  was  not  guilty  of  negligence  in 
either  of  the  respects  mentioned,  your  verdict  should  be  for  the 
defendant.  If  you  find  that  the  injury  was  caused  by  pure 
accident,  or  if  you  find  that  the  collision  was  caused  by  the  sole 
neglect  of  the  servant  of  the  plaintiff  in  charge  of  the  car,  and 
that  the  defendant  railway  company  was  not  guilty  of  any  neg- 
ligence in  the  matter,  your  verdict  should  be  for  the  defendant.3 
iNehxing  v.  Conneticut  Co.,  S4  Ail.  :H)1  (Conn.),  8  St.  Ry.  Rep.  480. 
"  Nicholson  v.  Scioto  Valley  Tr.  Co.,   14  X.  P.    (X.S.)    177,  188;  Happe  v. 

Railway,   61    Wis.    357;    Moore  on   Facts,   sec.   120;    Central   of  Ga. 

Ry.  o.  Waxelbaum,  111  Ga.  812. 
-Gregg   v.   Columbus   Railway   &  L.   Co.,   Franklin  Co.   Com.   Pleas.     Kin- 

kead,  J. 

Sec.  2317.    Duty  of  motorman   on  meeting  horse  coming  in 
opposite  direction  becoming  frightened. 

The  jury  is  instructed  that  the  rights  of  the  driver  of  a 
horse  and  of  the  manager  of  an  electric  ear  meeting  upon  a 
highway  are  equal  and  each  must  use  the  way  with  a  reasonable 
regard  for  the  safety  and  convenience  of  the  other.1 

The  motorman  in  cbarge  of  such  car,  when  running  it  at  the 
ordinary  rate  of  speed,  is  not  required  to  stop  or  lessen  the 
speed  of  the  car  when  observing  that  a  horse  approaching  from 
the  opposite  direction  is  frightened,  unless  the  circumstances 
arc  such  as  to  indicate  that  the  horse  has  or  probably  will  be- 
come unmanageable  upon  the  approach  of  the  car,  and  that  the 
driver  or  persons  with  him  are  or  will  be  put  in  imminent 
danger  and  peril.2 

i  Ellis  v.  Railway,  160  Mass.  341. 

2  Railway   v.  Houston.  9   C.  C.    (X.S.)    408;    see  Benjamin  v.  L.  &  B.   Ry. 
Co.,   160  Mass.  341;   Benjamin  v.  Holyoke  St.  Ry.,  160  Mass.  3. 

Sec.  2318.    Duty  of  driver  of  wagon  in  crossing  track  at  street 
crossing — Ordinary  care — Look  and  listen. 

The  jury  is  instructed  that  the  law  does  not  require  one  who 
is  about  to  drive  a  team  [or  automobile]  across  a  street  car 
track  at  a  street  crossing  to  stop,  or  to  look  and  listen  for  an 


STREET  RAILWAYS.  2143 

approaching  car  in  the  same  manner  as  when  crossing  the  track 
of  a  steam  railroad.  The  rule  of  conduct  which  applies  to  and 
governs  such  a  driver  is  that  he  shall  use  ordinary  care  in  driv- 
ing across  the  track.  Such  care  must  depend  upon  the  condi- 
tions and  circumstances  of  the  particular  case.  If  they  are  such 
as  would  require  a  prudent  and  careful  person  to  stop  and  look, 
then  he  should  do  so  before  crossing.  If  he  failed  to  do  so,  he 
would  be  negligent.  If  the  circumstances  are  such  that  un 
ordinarily  prudent  person  would  be  warranted  in  passing  across 
the  tracks  without  stopping  or  looking,  then  he  would  not  be 
guilty  of  negligence  for  failing  so  to  do. 

The  question  is  for  the  jury  to  determine  from  all  the  facts 
and  circumstances. 

So,  therefore,  if  the  jury  finds,  etc. 

Sec.  2319.     Duty  of  driver  of  vehicle  about  to  cross  track  at 
street  crossing — Ordinary  care  only  required. 

The  rule  of  care  which  the  law  exacts  of  one  who  is  about  to 
drive  across  the  track  of  a  street  railway  crossing,  is  that  he 
shall  use  ordinary  care  for  his  own  safety,  such  care  as  reason- 
ably prudent  persons  would  or  should  ordinarily  use  under  the 
same  or  similar  circumstances.  The  rule  of  looking  and  listen- 
ing as  required  when  crossing  steam  railroads  does  not  apply. 
And  it  may  not  always  be  required  that  such  driver  shall  look 
and  listen  for  an  approaching  car.  The  degree  of  caution  or 
watchfulness  will  depend  upon  the  circumstances.  Ordinary 
care  requires  that  he  should  use  his  faculties  for  his  own  pro- 
tection and  safety.1 

i  Traction  Co.  v.  Brandon,  87  O.  S.  187;  Street  Ry.  v.  Westenhuber,  22 
C.  C.  67;  affd.  6f>  O.  8.  567;  Railway  v.  Kiner,  17  C.  C.  (N.S.)  431; 
Railway  v.  Snell,  54  0.  8.  107. 

Sec.  2320.     Driver   of   vehicle   arriving  at   street  crossing  in 
advance  of  street  car  has  prior  right  to  cross. 

The  jury  is  instructed  that  the  driver  (if  a  vehicle  arriving 
at  a  street  crossing  in  advance  of  n  ear  has  the  prior  right  to 


2144  INSTRUCTIONS   TO    JURY. 

cross  the  track  of  the  railway  company.  While  he  is  in  the 
act  of  crossing  he  may  assume  that  the  approaching  car  is  being 
operated  in  a  careful  and  prudent  manner  and  is  under  reason- 
able and  proper  control,  and  that  its  speed  does  not  exceed  that 
fixed  by  municipal  ordinance.  Such  driver  has  the  right  under 
such  circumstances  to  proceed  to  cross  the  track  even  though 
in  doing  so  may  require  that  the  speed  of  the  car  be  reduced  or 
slackened,  or  even  though  it  might  require  that  the  car  be 
brought  to  a  full  stop  to  avoid  a  collision.1 

i  Mansfield  Ry.  L  &  P.  Co.  v.  Kiner,  17  C.  C.  (X.8.)  431;  court  of  appeals. 
The  foregoing  is  a  strong  statement  of  the  law,  too  stringent  for 
the  larger  cities  of  the  state.  Under  the  new  system,  however,  a 
rule  applied  in  a  small  city  becomes  the  supreme  law  fo.  the 
larger  cities.  To  say  generally  that  a  vehicle  arriving  in  advance 
of  a  car  has  a  prior  right  without  further  detail  of  circumstances 
or  conditions  is  hardly  a  fair  rule  to  be  applied  in  many  cases 
arising  in  cities.  See  Carrahar  r.  "Railway,  108  Mass.  549,  85  N. 
E.  162,  126  Am.  St.  461. 


Sec.  2321.     Relative  rights  of  street  car  and  driver  of  vehicle 
at  street  crossing. 

The  jury  is  instructed  that  the  driver  of  a  vehicle  and  of  a 
street  railway  company  at  a  street  crossing  each  have  an  equal 
right  to  use  the  street  at  such  point.  This  right  is  subject  to  the 
qualification  that  due  allowance  is  to  be  made  for  the  fact  that 
the  car  runs  upon  a  fixed  track,  and  by  reason  of  its  greater 
weight  it  is  less  easy  to  stop  than  the  smaller  vehicle.  The 
different  right  which  the  railway  company  has  arises  from  the 
necessity  of  the  car  confining  its  tracks,  and  the  consequent 
inability  to  turn  out  to  avoid  collision. 

The  law  imposes  a  duty  on  the  motorman  operating  a  street 
car  to  be  on  the  lookout,  as  it  does  upon  the  driver  of  another 
vehicle.  Furthermore,  the  duty  is  imposed  on  the  company 
to  so  operate  its  cars,  by  the  exercise  of  reasonable  care,  as  to 
keep  them  under  ordinary  control  at  street  crossings  in  order 


STREET  RAILWAYS.  2145 

thereby  to  avoid  injury  to  those  first  reaching  the  crossing  and 
exercising  their  right  to  cross.1 

i  Traction  Co.  v.  Brandon,  87  0.  S.  187.  See  Railway  v.  Hunter,  10  C.  C. 
(N.S.)  564,  for  a  different  form  of  request,  a  part  of  which  was 
approved. 

Sec.  2322.     Duty  of  motorman  to  discover  vehicle  about  to 
cross  track  and  avoid  injury. 

Where  the  motorman  of  a  street  car  which  is  being  operated 
on  a  public  street  in  a  much  frequented  part  of  the  city,  dis- 
covers, or  by  the  exercise  of  ordinary  care  and  watchfulness 
should  discover,  that  the  driver  of  a  smaller  vehicle  is  about  to 
cross  the  track  at  a  street  crossing,  in  front  of  such  car,  it  is 
the  motorman 's  duty  to  use  ordinary  care  and  vigilance  to  stop 
or  check  the  car  in  order  to  avoid  a  collision.1 
i  Traction  Co.  v.  Brandon,  87  0.  S.  187. 

Sec.  2323.     Contributory  negligence  of  children  at  crossings. 

It  was  the  duty  of  the  decedent  (or  plaintiff)  to  conduct  her- 
self with  ordinary  prudence  and  care  in  passing  over  the  rail- 
road crossing,  such  prudence  and  care  as  was  commensurate 
with  the  existing  dangers  known  to  her,  or  that  reasonably  ought 
to  have  been  known  to  her  under  the  then  existing  circumstances, 
such  as  a  child  of  her  age  would  ordinarily  exercise  under  like 
circumstances.  If  she  knew  or  had  sufficient  judgment  to 
appreciate  the  hazards  of  the  railroad  crossings,  and  undertook 
to  cross  the  same  while  the  trains  of  said  company  were  passing 
upon  its  tracks  near  and  over  said  railroad  crossing,  she  took 
upon  herself  the  risks  incident  thereto,  but  her  conduct  should 
not  be  judged  by  the  same  rule  as  that  of  adults.  And  while 
it  was  her  duty  to  exercise  ordinary  care  and  prudence  to  avoid 
the  injury  complained  of,  ordinary  care  for  her  would  be  that 
degree  of  care  which  children  of  the  same  age  of  ordinary  care 
and  prudence  are  accustomed  to  exercise  under  similar  circum- 
stances. All  her  conduct  is  to  be  treated  in  this  light.  *  *  * 
If  you  find  by  a  preponderance  of  the  evidence  that  the  decedent, 
was  so  guilty  of  negligence  that  directly  contributed  to  her  death, 
the  plaintiff  can  not  recover,  for  it  was  the  duty  of  the  decedent, 


2146  INSTRUCTIONS   TO   JURY. 

at  the  time  of  her  decease,  to  exercise  ordinary  care  and  pru- 
dence, and  care  and  prudence  of  a  child  of  her  years  and  under- 
standing, under  all  the  circumstances  then  known  to  her,  or  that 
reasonably  ought  to  have  been  known  to  her. 

But  if  you  do  not  find  her  guilty  of  contributory  negligence, 
and  you  do  find  under  these  instructions  that  the  defendant  was 
guilty  of  negligence  herein  defined  and  limited,  your  verdict 
should  be  for  the  plaintiff,  and  for  such  amount  of  damages  as 
you  shall  find  under  the  instructions  given  you  upon  that  sub- 
ject.1 
i  Voris,  J.,  in  Gaston  v.  Lake  Shore  R.  R.  Co.,  Lorain  Co.  Com.  Pleas. 

Sec.  2324.     Presumption  of  negligence  from  collision — Burden 
cast  on  defendant. 

The  jury  is  instructed  that  where  a  passenger,  in  an  action 
against  a  street  railway  company,  shows  that  he  was  injured  as 
the  result  of  a  collision  at  a  railroad  crossing  with  a  railroad 
train,  the  presumption  arises  that  the  collision  was  due  to  the 
negligence  of  the  company,  thereby  throwing  the  burden  on  the 
company  to  show  that  the  collision  was  not  due  to  its  negligence.1 

i  Parker   v.  Railway.    153   Iowa.   2.">4.   133  X.   W.   373,  Ann.   Cas.   1913,  E. 
174;  Osgood  v.  Traction  Co.,  137  Cal.  280. 

Sec.  2325.    Prima  facie  negligence  from  collision. 

If  you  find  from  the  evidence  that  plaintiff  took  passage  in 

one  of  defendant's  cars  to  ride  from to ,  and  while 

thus  riding  in  the  car  of  the  defendant  company,  and  without 
negligence  on  her  part,  a  car  of  the  defendant  company  on  the 
same  track,  running  at  a  high  rate  of  speed,  collided  with  the 
car  upon  which  the  plaintiff  was  riding,  and  from  such  collision 
she  was  injured,  a  prima  facie  presumption  of  negligence  arises 
against  the  defendant  company,  and  that  such  presumption  must 
be  explained  away  or  accounted  for  by  the  defendant  before  it 


STREET  RAILWAYS.  2147 

can  absolve  itself  from  the  liabilities  arising  from  this  presump- 
tion of  negligence.1 

iGillmer,  J.,  in  Klipp  v.  Trumbull  Electric  Railroad  Co.  Sec  Bootli  on 
St.  Rys.,  sees.  323,  361;  North  Chicago  St.  Ry.  v.  Colton,  29  N  E 
Rep.  899,  32  Minn.  1. 

The  degree  of  care  which  should  be  exercised  to  avoid  collisions  is  such 
watchfulness  and  precaution  as  are  fairly  proportioned  to  the  dan- 
gers to  be  avoided,  judged  by  the  standard  of  common  prudence  and 
experience.     Id.,  sec.  309. 

Sec.  2326.     When  person  signals  car  intending  to  board  it  is 
to  be  treated  as  passenger. 

The  negligence  charged  in  the  petition  is  that,  after  signaling 
the  car  to  stop  for  the  purpose  of  boarding  it,  the  car  did  stop 
at  the  point  named  in  the  petition,  and  that  as  plaintiff  had 
taken  hold  of  the  handle  bar  and  had  started  to  board  the  car 
the  defendant  company  did  not  give  the  plaintiff  sufficient  time 
to  get  on  the  car,  but  that  the  conductor  negligently  signalled 
the  motorman  to  go  ahead  before  the  plaintiff  had  time  to  board 
the  car,  and  the  car  started  with  a  jerk  throwing  plaintiff  to  the 
street. 

A  street  railway  company  does  not  owe  any  duty  to  a  person 
as  a  passenger  until  he  has  placed  himself  in  such  position  that, 
under  the  rules  of  law,  he  is  to  be  treated  as  a  passenger.  And 
whenever  any  person  who  intends  to  become  a  passenger  upon 
a  street  car  has  signalled  the  car  to  stop,  and  places  himself  in 
such  position  that  the  conductor,  using  his  ordinary  senses,  is 
able  to  discover,  learn  and  know  that  the  person  is  intending 
to  become  a  passenger,  then  it  is  the  duty  of  the  conductor  to 
treat  him  as  such  and  to  give  him  a  reasonable  opportunity  to 
board  the  car.  Unless  the  person  so  intending  to  become  a 
passenger  does  so  place  himself  in  such  position  that  the  con- 
ductor may  reasonably  know  and  understand  that  he  intends 
to  become  a  passenger,  there  is  no  duty  owing  to  such  person 
on  the  part  of  the  company,  and  it  must  appear  in  this  case  that 
the  plaintiff  did  place  himself  in  such  position  that  the  con- 
ductor had  reasonable  opportunity  to  know  and  Irani  thai  hr 
was  intending  to  board  the  car.1 
i  Lawrence  v.  Ry.  &  Light  Co.,  Franklin  Co.  Com.   Pleas.      Kinkond,  J. 


CHAPTER   CXXXVI. 
SURETIES. 

SEC.  SEC- 

2327.  Liability   of  sureties   on  bond       2328.  Contract   strictly   construed — 
of  agent,  where  agent  had  When  creditor   accepting 

previously      defaulted —  sureties  bound  to  inform 

Duty      of     company      to  them   as  to  the  business 

sureties.  of   suretyship  —  Security 

for  pre-existing  debt. 

Sec.  2327.  Liability  of  sureties  on  bond  of  agent,  where  agent 
had  previously  defaulted — Duty  of  company 
to  sureties. 
"If  A.  B.,  at  and  before  the  time  the  bond  was  required  of 
him,  was  intentionally  and  dishonestly  a  defaulter  to  the  com- 
pany, as  to  moneys  intrusted  to  it,  which  he  had  received  as  its 
agent,  and  that  the  witness  acted  for  said  company  in  demand- 
ing and  receiving  the  bond,  and,  before  receiving  the  same, 
cither  knew  of  such  default,  or  if  he  did  not  know  it,  believed 
upon  reasonable  and  reliable  ground  of  information  or  belief, 
that  such  default  existed,  then,  if  suitable  and  reasonable  oppor- 
tunity existed,  it  was  the  duty  of  the  witness,  as  the  agent  of 
the  company,  to  make  known  to  the  sureties,  upon  the  bond 
such  fact  of  A.  B.'s  delinquency,  or  witness'  belief  of  such 
delinquency,  before  accepting  the  bond,  although  witness  did 
not  know  before  the  bond  was  signed  by  the  sureties  who  they 
were  to  be,  and,  as  witness  did  not  give  such  information,  if  the 
sureties,  in  signing  the  bond,  acted  under  a  belief  from  its  re- 
citals that  the  company  considered  A.  B.  a  trustworthy  person, 
and  would  not  have  signed  the  bond  but  for  such  belief,  then 
the  plaintiff  can  not  recover  against  the  sureties,  or  either  of 
them. 

2148 


SURETIES.  21-49 

"But  if  A.  B.  had  not  been  a  defaulter  at  the  time  of  the 
acceptance  of  the  bond  by  witness,  or  if  he  was  so  by  mere  mis- 
take, or  other  cause  not  involving  intentional  wrong,  and  the 
witness,  at  the  time  aforesaid,  knew  or  believed  such  delinquency 
existed,  it  was  not  the  duty  of  witness  to  make  this  knowledge 
or  belief  known  to  said  sureties,  or  either  of  them,  and  his  failure 
to  do  so  would  not  vitiate  the  bond. 

"Or  if  witness  was,  at  the  time  of  accepting  the  bond,  at 
such  a  distance  from  the  said  sureties  that,  under  the  circum- 
stances shown  by  the  testimony,  he  could  not  reasonably  inform 
them  of  such  delinquency,  he  was  not  bound  to  give  them  this 
information,  although  the  agent  had  been  dishonestly  a  defaulter, 
and  the  witness  knew  or  believed  that  fact,  and  his  failure  to 
do  so  would  not  vitiate  the  bond  or  prevent  plaintiff  from  recov- 
ering upon  it  against  the  defendants."1 
i  Dinsmore  v.  Tidball,  34  O.  S.  411. 

Sec.  2328.  Contract  strictly  construed — When  creditor  accept- 
ing sureties  bound  to  inform  them  as  to  the 
business  of  suretyship — Security  for  pre-ex- 
isting debt. 

The  law  applies  a  strict  construction  to  contracts  of  surety- 
ship. If  a  creditor  induces  a  surety  to  enter  into  a  contract 
of  suretyship  by  any  fraudulent  concealment  of  material  facts, 
the  surety  will  be  thereby  released.  The  contract  of  surety- 
ship, as  a  general  rule,  is  for  the  benefit  of  the  creditor,  while 
the  surety  derives  no  advantage  from  it.  Hence  the  law  imposes 
upon  the  creditor  the  duty  of  dealing  with  sureties,  at  every  step, 
with  the  utmost  good  faith.  It  can  not  always  be  said  that  the 
creditor  before  accepting  sureties,  is  bound  to  inform  them  con- 
cerning information  touching  the  business  of  the  suretyship 
which  may  be  within  the  knowledge  of  the  creditor,  and  which 
might  increase  the  risk  of  the  undert;ikin<r  on  the  pari  of  the 
surety.  This  will  depend  upon  the  peculiar  circumstances  of 
the  given  case.  If  there  is  nothing  in  the  circumstances  sur- 
rounding the  business  of  the  suretyship   to   indicate   that  the 


2150  INSTRUCTIONS   TO  JURY. 

sureties  are  being  misled,  or  deceived,  or  that  they  are  entering 
into  the  contract  in  ignorance  of  facts  materially  affecting  the 
risks  thereof,  then  the  creditor  in  such  case  is  under  no  obliga- 
tion to  communicate  facts  within  his  knowledge,  but  may  assume 
that  the  sureties  know  the  material  facts  or  that  they  are  willing 
to  assume  the  risks  of  the  undertaking  if  they  sign  the  note. 

But  if  the  creditor  knows,  or  has  good  grounds  for  believing, 
that  the  sureties  are  being  deceived  or  misled,  and  he  believes 
that  the  sureties  may  not  enter  the  relation  and  assume  the  obli- 
gation, if  they  become  aware  of  material  facts  known  to  the 
creditor  and  the  debtor,  including  their  intent  and  purpose, 
that  is  the  debtor  and  creditor,  and  the  creditor  has  an  oppor- 
tunity before  acepting  the  undertaking,  to  inform  the  sureties 
of  such  material  fact,  good  faith  and  fair  dealing  demands  in 
such  case  that  the  creditor  should  make  such  disclosures  to  them  ; 
and  if  he  accepts  the  contract  under  such  circumstances  without 
doing  so,  the  surety  may  avoid  the  same. 

In  the  foregoing  statement  of  the  law,  in  its  application  to 
this  case,  the  jury  will  understand  that  when  the  court  uses  the 
term  "creditor"  it  comprehends  the  plaintiff,  and  that  the  debtor 
or  principal  applies  to  II.,  and  sureties  to  the  defendants. 

Whether  a  failure  of  the  creditor  in  such  cases  to  disclose 
facts  known  to  him  and  not  known  to  the  sureties,  may  be  deemed 
fraudulent,  will  depend  largely  upon  the  character  of  the  busi- 
ness to  which  the  suretyship  relates,  and  the  knowledge,  oppor- 
tunity, situation  and  relation  of  the  sureties  thereto.  It  is  a 
conceded  fact  in  this  case  that  the  principal,  II.,  was  in  debt  to 
a  considerable  amount  on  a  long-standing,  pre-existing  obliga- 
tion on  a  running  account  for  merchandise  sold  and  delivered 
by  plaintiff  to  him,  which  was  giving  plaintiff  some  concern. 
It  is  also  a  conceded  fact  that  the  plaintiff  credited  the  amount 

of  the  $ note  to  the  account  of  H.,  and  kept  on  furnishing 

goods  to  H.  until  he  had  exceeded  the  credit  secured  by  plaintiff 

by  the  $ note.     It  is  conceded  also  that  plaintiff  sold  the 

note  to  a  third  party  who  discounted  it  in  bank,  and  upon  fail- 
ure of  the  defendants  to  pay  the  same  at  maturity,  plaintiff 


SURETIES.  2151 

took  up  the  note  in  bank,  paying  the  amount  to  the  bank  then 
due  upon  it. 

Now,  gentlemen,  applying  these  fundamental  principles  of  law 
which  I  have  given  you  to  this  case,  if  it  appears  to  you  from 
the  evidence  that  after  H.  and  P.,  the  latter  acting  within  his 
authority  for  the  plaintiff,  learned  that  H.  could  not  obtain  a 
loan  upon  the  note  with  the  defendants  as  sureties,  that  H.  and 
plaintiff  obtained  this  note  with  the  defendants  as  sureties,  and 
that  the  same  was  delivered  and  accepted  by  plaintiff  with  the 
intent  and  purpose  on  their  part  to  apply  it  as  a  credit  on  the 
old  and  pre-existing  debt  of  H.  to  plaintiff,  and  to  hold  the 
balance  as  security  for  future  indebtedness;  and  if  it  also  ap- 
pears that  the  defendants  did  not  know  of  the  pre-existing  debt 
of  H.  to  plaintiff,  or  of  the  amount  and  extent  thereof,  and  if 
plaintiff  knew,  or  had  good  grounds  for  believing,  that  defend- 
ants were  signing  and  did  sign  the  note  in  ignorance  of  the  pre- 
existing debt  of  H.,  and  the  amount  and  extent  thereof,  and 
that  they  did  not  know  that  the  same  was  to  be  applied  as  a 
credit  upon  that  debt,  and  plaintiff  failed  to  inform  them  con- 
cerning the  same,  and  H.  and  plaintiff,  through  its  agent,  P., 
used  any  artifice  to  conceal  from  the  defendants  their  purpose 
to  use  it  as  a  credit  on  their  own  debt,  and  if  the  jury  find  that 
defendants  would  not  have  signed  the  note  had  they  known  of 
the  existence  of  the  pre-existing  debt  and  of  a  purpose  to  use 
the  note  to  liquidate  the  same,  and  for  future  credit;  and  if  the 
jury  find  that  defendant  signed  the  note  both  without  knowledge 
of  the  nature  and  extent  of  the  pre-existing  obligation,  and  with- 
out knowledge  of  the  inability  of  IT.  to  pay  a  loan  upon  the 
proposed  note  with  defendants  as  sureties,  and  without  knowl- 
edge of  the  intent  and  purpose  of  plaintiff  to  apply  the  note  to 
the  credit  of  the  pre-existing  debt  and  account  of  II.  in  the 
manner  in  which  the  undisputed  evidence  shows  il  was  done, 
then  the  jury  should  find  that  the  plaintiff  had  been  guilty  of 
fraudulent  concealment  of  material  facts  releasing  defendants 
from  their  obligation,  and  your  verdict  should  be  for  the  de- 
fendants. 


2152  INSTRUCTIONS   TO   JURY. 

But  if,  on  the  other  hand,  you  find  that  the  defendants  had 
knowledge  of  the  pre-existing  debt  of  H.  to  plaintiff,  or  if  you 
find  that  the  circumstances  were  such,  by  the  application  of  the 
principles  of  law  heretofore  given  you,  that  there  was  no  good 
reason  for  believing  that  the  defendants  were  being  misled  in 
the  matter  with  reference  to  the  pre-existing  debt,  and  that  they 
knew  the  purpose  for  which  the  loan  was  to  be  used,  and  was 
used,  then  the  fact  that  it  was  used  to  secure  a  pre-existing  debt 
of  H.  will  not  operate  as  a  release  to  them.1 

i  David  Davies  Packing  Co.  v.  Trautman,  et  al.,  Franklin  Co.  Com.  Pleas. 
Kinkead,  J.  Authorities  on  pre-existing  debt,  etc.  Fassnacht  v. 
Emsing,  Gagen  county,  18  Ind.  App.  80,  63  Am.  St.  322  and  note, 
p.  327;  Warren  v.  Branch,  1")  \Y.  Va.  21;  cases  cited  p.  333  of  63 
Am.  St.;  Lee  v.  Jones,  17  Com.  B.  X.  S.  482;  Stone  v.  Compton,  5 
Bing.  142;  Pedock  v.  Bishop,  3  Barn.  &  C.  605;  Hamilton  v.  Wal- 
son,  12  Clark  &  F.  109;  Wason  v.  Waring,  15  Beav.  151;  Daughty 
v.  Savage,  28  Conn.  146;  Comstock  v.  Gage.  81  111.  328,  6  N.  P.  31, 
3  0  S.  302. 


CHAPTER   CXXXVIL 
TENDER. 

SEC.  SEC. 

2329.  Definition  and  object  of  tender. 

Sec.  2329.     Definition  and  object  of  tender. 

The  jury  are  instructed  that  when  a  party  has  entered  into 
an  obligation  (either)  to  pay  money,  (or)  to  deliver  goods,  (or) 
to  perform  services,  and,  by  some  outward  expression  or  act,  in 
effect  tenders  or  offers  to  perform  the  obligation  in  the  manner 
agreed  upon,  the  law  considers  that  he  has,  in  fact,  substan- 
tially performed  it.  A  tender  is  an  offer  (either  to  pay  a  debt 
or)  to  perform  an  obligation.  To  be  effectual,  the  party  mak- 
ing it  must  continue  ready  and  willing  to  pay  or  perform  the 
obligation,  and  must  have  the  ability  to  perform.  The  effect 
of  a  valid  and  legal  tender  is,  that  the  party  acknowledging  an 
indebtedness  of  the  amount  tendered  (or  of  an  obligation  to 
perform  an  act)  is  to  stop  the  running  of  interest,  and  to  pro- 
tect him  from  the  payment  of  costs.1 

To  be  effective  as  a  tender  it  must  be  kept  good  by  the  pay- 
ment of  the  money  into  court  for  the  plaintiff;2  and  it  must  be 
actually  offered  to  the  person  to  whom  it  is  made,  so  that  he  can 
see  it,3  and  it  must  be  the  amount  actually  due.4 

If  you  find  from  a  preponderance  of  the  evidence  that  the 
defendant  has  complied  with  all  these  requirements,  then  you 
may  be  justified  in- finding  that  a  tender  has  been  made.  But  if 
you  find  that  the  defendant  merely  expressed  a  willingness  or 
readiness  to  pay  without  offering  a  definite  sum  or  the  amount 
actually  due,  and  that  he  did  not  actually  produce  and  offer  to 
pay,  and  that  he  did  not  keep  sueh  offer  good  by  tendering  or 
depositing  it  in  court,  then  you  can  not  find  that  a  tender  was 
made.6 

2153 


2154  INSTRUCTIONS   TO    JUEY. 

The  defendant  need  not,  however,  actually  produce  the  money 
where  the  plaintiff  has  done  something  which  would  make  it 
unnecessary,  as  where  the  plaintiff  says  that  the  defendant  need 
not  produce  it,  that  it  would  not  be  accepted.9 

i  JIalpin  v.  Ins.  Co.,  118  N.  Y.  165;   Tiedman  on  Sales,  sec.  139. 

2  Armstrong  v.  Spears,  18  O.  S.  373. 

3  Pinney    v.   Jorgensen,   27   Minn.   26;    Hoffman   v.    Van   Dieman,   62   Wis. 

362. 

4  5  Mass.  365. 

cMust  actually  produce  the  money,  41  Cal.  420,  8  Neb.  507,  46  Barb.  227. 
«  8  O.  173,  8  Neb.  507,  10  Cuah.  267. 


CHAPTEE  CXXXVIII. 

WILLS. 


SEC. 

2330. 
2331. 
2332. 


2333. 


2334. 


2335. 
2336. 

2337. 


Who  may  make  a  will. 

Requirements  of  valid  will. 

Witnesses  need  not  see  testa- 
tor sign,  if  acknowledged 
before  them. 

Declarations  of  testator  to 
show  condition  of  mind. 

Instructions  to  jury  in  con- 
test of   will. 

1.  The  issue. 

2.  Order    of    probate,    prima 

facie,  evidence  —  Burden 
of  proof. 

3.  Degree    of    proof — Prepon- 

derance— Probabilities. 

4.  Capacity    to    make    will — 

Essentials. 

5.  Proof  of  undue  influence. 

6.  What     constitutes     undue 

influence  and  restraint. 

7.  Declarations  after  making 

will. 

8.  Directions  as  to  verdict. 
Insane   delusion. 

Old  age  and  sickness,  as  affect- 
ing mental  capacity. 

A  concise  charge  in  will  con- 
test in  different  form, 
embracing : 

1.  Who  may  make  a  will. 

2.  Probate  of  will  prima  facie 

evidence — B  u  r  d  e  n      of 
proof. 


SEC. 


2338. 
2339. 
2340. 

2341. 
2342. 
2343. 

2344. 


3.  Testator  must  be  of  sound 

mind  and  memory. 

4.  Testator  must  know  extent 

and  value  of  property, 
and  natural  objects  of 
his  bounty. 

5.  Provisions    of    will    to    be 

considered. 

6.  Need    not    be    technically 

insane — Weakness  of  in- 
tellect   sufficient   when — 

7.  Undue  influence. 

8.  Inequality   or    injustice    of 

will. 

Consideration  of  the  will 
itself. 

What,  if  anything,  may  be  in- 
ferred from  will. 

Moral  depravity — As  affect- 
ing mental  capacity  — 
Notable  charge  of  Long- 
worth,  J. 

Undue  influence — What  con- 
stitutes — ■  Another   form. 

Undue  influence  —  Long- 
worth,  J. 

LTndue  influence  —  Pursuasion 
to  make  will — Flattery — 
Appeals  to  affections. 

Nuncupative  will  —  Words 
written  down  not  those 
spoken. 


Sec.  2330.     Who  may  make  a  will. 

Under  the  law  of  Ohio  any  person  of  full  age  and  sound  mind 
and  memory,  and  not  under  any  restraint,  having  any  property, 


2U 


2156  INSTRUCTIONS   TO   JURY. 

personal  or  real,  or  any  interest  therein,  may  give  and  bequeath 
the  same  to  any  person  by  last  will  and  testament,  lawfully  exe- 
cuted.1 

The  law  further  requires  that  the  will  in  controversy  being 
a  written  one,  shall  be  signed  at  the  end  thereof  by  the  said 
(testator),  or  by  some  other  person  in  his  presence  by  his  ex- 
press direction,  and  shall  be  attested  and  subscribed  in  the  pres- 
ence of  said  (testator),  by  two  or  more  competent  witnesses,  who 
saw  the  said  (testator)  subscribe  or  heard  him  acknowledge  the 
same.2 

i  Code,  sec.  5914. 

2  Cyrus   Newby,    J.,    in    Graham    v.    Graham,    Highland    Co.    Com.    Pleas. 
R.  S.,  sec.  5916. 

Sec.  2331.     Requirements  of  a  valid  will. 

In  order  that  it  may  be  his  last  will  and  testament,  he  must 
have  been  of  full  age,  that  is,  at  least  twenty-one  years  of  age, 
at  the  time  of  executing  it,  of  sound  mind  and  memory,  and  not 
under  any  restraint,  and  have  property,  real  or  personal,  or 
some  interest  therein.  It  is  further  necessary  that  the  paper 
produced  as  his  will  should  have  been  signed  at  the  end  thereof 
by  the  said  (testator),  or  by  some  other  person  in  his  presence, 
and  by  his  express  direction,  and  attested  and  subscribed  in  the 
presence  of  said  (testator),  by  two  or  more  competent  witnesses, 
who  saw  the  said  J.  G.  subscribe  or  hearl  him  acknowledge  the 
same.  If  any  one  of  these  requisites  should  be  lacking  in  the  exe- 
cution or  attestation  of  the  paper  produced  as  the  last  will  and 
testament  of  said  (testator),  it  would  not  be  a  lawful  will,  and 
its  probate  should  be  set  aside.1 
i  Newby,  J.,  in  Graham  v.  Graham.  Highland  Co.  Com.  Pleas. 

Sec.  2332.  Witnesses  need  not  see  testator  sign  if  acknowl- 
edged before  them. 
It  is  not  required  that  the  subscribing  witnesses  to  the  will 
should  have  signed  the  same  in  the  presence  of  each  other,1  but 
they  must  have  subscribed  the  same  in  the  presence  of  the  tes- 
tator.   Nor  is  it  required  that  both  subscribing  witnesses  should 


wills.  2157 

have  been  present  at  the  signing  of  the  paper  claimed  to  be  the 
will  of  said  (testator)  or,  in  fact,  that  either  should  have  seen 
the  said  testator  subscribe  the  instrument,  but  in  case  either 
should  not  have  seen  the  said  testator  subscribe  said  paper,  then 
it  becomes  necessary  that  the  testator  should  have  acknowledged 
to  the  witnesses  that  the  paper  which  he  had  signed  was  his  last 
will  and  testament.2  This  acknowledgment  by  the  testator  is 
not  required  to  be  in  any  particular  form  of  words,  or  in  any 
specified  manner.  But  the  testator  must,  by  some  words,  con- 
duct, or  the  attending  circumstances,  give  the  witnesses  to  under- 
stand that  he  acknowledges  the  signature  to  the  instrument  as 
his,  and  the  instrument  itself  as  his  will.3 

iRaudebaugh  v.  Shelley,  6  0.  S.  306. 

2  Reynolds  v.  Shirley,  7  0.  (pt.  2)  39. 

s  Newby,  J.,  in  Graham  v.  Graham,  Highland  Co.  Com.  Pleas.  See  charge 
in  Haynes  v.  Haynes,  33  0.  S.  610. 

There  need  he  no  precise  form  of  acknowledgment.  "It  is  not  necessary 
that  any  precise  form  of  words  should  be  used  by  the  testator  in 
acknowledging  either  his  signature  or  will.  It  will  be  sufficient  if 
by  signs,  motions,  conduct,  or  the  attending  circumstances,  lie  gives 
the  attesting  witnesses  to  understand  that  he  acknowledged  tin- 
will  and  the  signature  to  be  his.  If,  therefore,  you  shall  find  from 
the  evidence  that  Mr.  H.  authorized  Mr.  A.  to  sign  his  (II. 's)  name 
to  the  will  when  no  other  witness  was  present,  and  A.  did  so 
sign  the  will  in  the  presence  of  H.,  and  afterward,  on  the  same 
day,  Mr.  H.,  either  by  words  or  signs,  motions,  conduct  or  the  attend- 
ing circumstances,  give  the  attesting  witnesses  to  understand  that 
he  acknowledged  the  signatures,  and  requested  them  to  attest  the 
will,  and  that  they  did  so  attest  the  will  in  his  presence,  this  will 
be  a  sufficient  acknowledgment  and  attestation  of  the  signature, 
and  your  verdict  should  be  for  the  defendants  and  the  will."     Id. 

Sec.  2333.    Declarations  of  testator  to  show  condition  of  mind. 

The  declarations  of  a  testator  made  after  the  execution  of  his 
will  are  admissible  only  for  the  purpose  of  showing  his  condi- 
tion of  mind,  and  must  not  be  used  to  prove  tin'  fact  thai  undue 
influence  or  fraud  were  used  to  induce  him  to  make  the  will  in 
question,  except  in  so  far  as  they  may  evidence  a  condition  of 
mind  easily  subjected  to  such  influence  at  the  date  of  his  will. 
You  must  bear  in  mind,  however,  that  the  verbal  statements, 


2158  INSTRUCTIONS    TO    JURY. 

admissions  or  declarations  should  be  received  with  great  caution. 
The  evidence,  consisting  as  it  does  in  mere  repetitions  of  oral 
statements,  is  subject  to  much  imperfection  and  mistake ;  the 
party  testifying  to  them  may  be  misinformed  or  may  have  mis- 
understood the  testator.  It  frequently  happens,  also,  that  the 
witness  by  altering  a  few  of  the  expressions  really  used,  gives 
an  effect  to  the  statement  completely  at  variance  with  what  the 
party  actually  did  say.1 

i  Newby,  J.,  in  Graham  v.  Graham,  Highland  Co.  Com.  Pleas.  The  declara- 
tions of  the  testator,  made  at  about  the  time  of  executing  his  will, 
are  admissible  to  show  his  capacity  and  the  state  of  his  affections. 
Rule  r.   Maupin,  84  Mo.  587. 

A  testator's  declaration  before  making  liis  will  that  his  children  lacked 
natural  affection  are  admissible  to  show  his  state  of  mind.  What- 
ever is  material  to  prove  the  state  of  one's  mind  and  what  were 
his  intentions  can  be  shown  by  his  declarations  and  statements, 
the  truth  of  such  statements  being  immaterial.  Wilkinson  r. 
Service,  249  111.  146.  04  X.  E.  50,  Ann.  Cas.  1912,  A.  41.  See  Page 
on  Wills,  sees.  400,  423. 

Sec.  2334.     Instructions  to  jury  in  contest  of  will. 

1.  The  issue. 

2.  Order  of  probate,  prima  facie  evidence — Burden  on  plain- 

tiff. 

3.  Degree  of  proof — Preponderance — Probabilities. 

4.  Capacity  to  make  a  will — Essentials. 

5.  Proof  of  undue  influence. 

6.  What  constitutes  undue  influence  and  restraint. 

7.  Declarations  after  making  of  will. 

8.  Directions  as  to  verdict. 

1.  The  issue.  The  issue  whether  or  not  the  paper  writing  is 
the  last  will  and  testament  of  W.  F.  R.,  is  made  up  by  an  answer 
filed  by  T.  B.  R.,  in  which  she  denies  the  invalidity  of  the  will, 
denying  that  "W".  F.  R.  was  of  unsound  mind,  or  that  he  was 
mentally  incapacitated  for  making  a  will.  She  denies  that  said 
decedent  was  coerced  into  signing  the  paper  writing  by  her 
undue  influence. 


WILLS.  2159 

The  questions  for  the  jury  to  determine,  therefore,  are  whether 
W.  F.  R.  at  the  time  of  making  and  executing  the  paper  writing 
purporting  to  be  his  last  will  and  testament  was  of  sound  mind 
and  memory;  whether  or  not  he  signed  the  paper  of  his  own 
volition ;  whether  he  signed  it  under  undue  influence  or  duress 
exercised  over  and  on  him  by  T.  B.  R. ;  and  whether  the  paper 
writing  is  his  last  will  and  testament. 

2.  Order  of  probate,  prima  facie  evidence — Burden  on  plaintiff. 
The  law  of  this  state  is  that  the  order  of  probate  of  a  will  is 
prima  facie  evidence  of  the  due  attestation,  execution  and  valid- 
ity of  the  will.  That  is,  such  will  and  order  of  probate  furnish 
such  an  amount  of  evidence  that,  were  no  further  evidence  of- 
fered, the  defendants  would  be  entitled  to  a  verdict  sustaining 
the  will  as  probated  by  the  probate  court. 

The  parties  having  admitted  in  this  case  that  the  will  in 
question  was  properly  attested  and  executed  so  far  as  the  formal 
requisites  prescribed  by  law  are  concerned,  the  only  question 
at  issue  are  those  relating  to  the  mental  capacity  of  the  deceased, 
and  to  the  alleged  undue  influence  exerted  upon  him  at  the  time 
of  the  execution  of  the  will.  The  jury  is  therefore  instructed 
that  as  the  order  of  probate  is  prima  facie  evidence  of  the  due 
execution  and  validity  of  the  will,  it  therefore  devolves  upon  the 
plaintiff  to  prove  by  a  preponderance  of  the  evidence  that  at  the 
time  the  will  was  so  signed,  acknowledged  and  attested  the  said 
W.  F.  R.  was  not  of  sound  mind  and  memory,  or  that  at  the  time 
the  said  testator  was  under  restraint  or  undue  influence. 

If  the  plaintiff  proves  by  a  preponderance  of  the  evidence 
either  of  these  things  as  to  which  the  burden  of  proof  is  on  him, 
then  you  should  return  a  verdict  finding  the  paper  produced 
not  to  be  the  last  will  and  testament  of  the  deceased.  But  if 
the  plaintiff  has  failed  to  prove  that  the  deceased  was  not  of 
unsound  mind  and  memory,  or  that  at  the  time  the  will  was  exe- 
cuted he  was  not  under  any  restraint  or  undue  influence,  you 
should  in  that  case  return  a  verdict  sustaining  the  will. 

3.  Degree  of  proof — Preponderance  of  evidence — Probabilities. 
By  a  preponderance  of  the  evidence  is  meant  the  greater  weight 


2160  INSTRUCTIONS   TO   JURY. 

thereof.  The  evidence  may  be  said  to  operate  in  favor  of  one 
party  whenever  the  greater  weight  thereof,  when  freely  and 
fully  considered,  is  in  favor  of  the  claims  of  such  party.  The 
nature  of  controversies  and  testimony  concerning  the  same  is 
such  that  it  is  not  always  possible  for  a  jury  to  be  assured  of 
the  absolute  truth  of  the  facts  in  issue.  Consequently,  the  rule 
of  law  with  reference  to  the  interpretation  of  the  degree  of 
evidence  prescribed  for  civil  cases,  such  as  this  one  is,  that  the 
jury  need  not  find  the  existence  of  any  material  fact  to  a 
degree  of  certainty,  it  being  essential  only  that  the  probabil- 
ities when  weighed  by  them,  preponderate  in  favor  of  the 
fact  which  they  find  to  be  established  by  the  proof.  If  the  evi- 
dence in  this  case  shows  to  your  minds  that  it  is  more  probable 
that  the  deceased  R.,  at  the  time  that  he  made  and  executed  the 
will  in  question,  was  under  restraint  and  undue  influence,  or  was 
mentally  incapable  of  making  the  same  under  the  rules  of  law 
given  you  by  the  court,  then  and  in  that  case  the  plaintiff  will 
have  to  make  out  his  case  by  a  preponderance  of  the  testimony. 
On  the  other  hand,  if  the  evidence  should  not  show  it  more  prob- 
able that  the  testator,  R.,  was  mentally  unsound  or  was  of 
unsound  mind  and  memory,  or  that  he  was  under  unlawful 
restraint  or  influence,  or  if  the  evidence  on  these  points  be 
evenly  balanced,  in  either  event  there  would  be  no  preponderance 
in  favor  of  the  plaintiff,  and  you  should  in  such  case  return  a 
verdict  sustaining  the  will.  The  defendants  are  entitled  to  a 
verdict  sustaining  the  will  as  probated,  unless  the  preponderance 
of  the  evidence  is  in  favor  of  the  plaintiff  on  at  least  one  of  the 
grounds  which  they  are  required  to  establish  as  they  are  alleged 
in  the  petition  of  plaintiff,  by  a  preponderance  of  the  evidence. 
4.  Capacity  to  wake  a  will — Essentials.  With  reference  to 
the  capacity  of  a  person  to  make  a  will,  the.  jury  is  instructed 
that  it  is  necessary  that  a  man  shall  have  mental  capacity  suf- 
ficient for  the  transaction  of  the  ordinary  affairs  of  life,  and  if 
be  possesses  this,  though  he  may  be  feeble  in  mind  ond  body 
from  sickness,  old  age  or  other  cause,  he  has  a  legal  right  to  dis- 
pose of  his  property  as  he  sees  fit  without  regard  to  the  wishes 


WILLS.  2161 

of  others.  The  law  does  not  undertake  to  test  a  man's  intelli- 
gence or  to  define  that  exact  quality  of  mind  and  memory  which 
a  testator  must  possess,  but  it  does  require  him  to  be  capable 
of  knowing  the  extent  and  value  of  his  property,  the  names  or 
relationship  of  those  who  are  natural  objects  of  his  bounty,  their 
deserts  in  reference  to  their  conduct  or  treatment  toward  him, 
their  conditions  and  necessities,  and  he  must  be  capable  of  re- 
taining all  these  facts  in  his  memory  long  enough  to  have  the 
will  prepared  and  executed. 

He  may  not  have  sufficient  capacity  to  make  a  contract,  but 
he  must  understand  substantially  what  he  is  doing ;  the  nature 
of  the  act  in  which  he  is  engaged,  the  extent  of  his  property,  the 
relations  of  others  who  may  be  or  ought  to  be  the  objects  of  his 
bounty,  and  the  scope,  bearing  and  effect  of  his  will,  and  he  must 
have  sufficiently  active  memory  to  collect  his  mind  without 
prompting ;  he  must  understand  the  elements  of  the  business  to 
be  transacted,  and  hold  them  in  his  mind  a  sufficient  length  of 
time  to  perceive  and  consider  their  obvious  relations  to  each 
other,  and  be  able  to  form  some  rational  judgment  in  reference 
to  them,  although  he  may  not  be  able  to  understand  and  appre- 
ciate these  matters  in  all  their  bearings  as  a  person  in  sound  and 
vigorous  health  of  mind  and  body  would  be. 

In  determining  the  question  of  mental  capacity,  it  is  your 
duty  to  take  into  consideration  the  provisions  of  the  will  itself 
in  connection  with  all  the  other*  testimony,  and  also  the  sur- 
rounding circumstances,  not  only  as  bearing  on  the  question  of 
mental  capacity,  but  that  of  undue  influence  as  well. 

It  is  not  necessary  that  the  testator  be  shown  to  be  technically 
insane.  Weakness  of  intellect  or  loss  of  memory,  whether  oc- 
casioned by  a  disease  or  great  bodily  suffering,  or  infirmity,  or 
from  all  these  combined,  may  render  the  testator  incapable  of 
making  a  valid  will,  provided  sud.  weakness  of  intelled  or  Loss 
of  memory  really  and  in  fact  disqualified  him  (Van,  knowing  or 
appreciating  the  consequences  and  effect  of  Lis  act  and  of  fairly 
considering  and  weighing  the  just  deserts  of  the  Datura!  objects 
of  his  bounty.     But  weakness  of  mind  or  memory  arising  from 


2162  INSTRUCTIONS   TO    JURY. 

any  cause,  will  not  disqualify  the  testator  from  disposing  of  his 
property  by  will,  unless  such  weakness  goes  to  the  extent  of  ren- 
dering him  incapable  of  appreciating  the  nature  and  extent  of 
his  property,  the  rights  and  claims  of  those  who  are  the  natural 
objects  of  his  bounty,  and  the  nature  and  consequences  of  the 
will  he  is  about  to  make.1 

5.  Proof  of  undue  influence.  The  proot  of  undue  influence 
can  seldom  be  made  by  direct  evidence,  and  the  law  does  not 
require  it;  but  the  circumstances  must  be  such  as»to  justly  lead 
to  the  inference  that  undue  influence  was  employed  and  that  the 
will  did  not  express  the  real  wishes  of  the  testator.  You  should 
look  into  the  character  of  the  mind  of  the  testator,  his  manner 
of  living,  the  relations  which  he  sustained  to  all  members  of  his 
family,  and  the  provisions  of  the  will  itself.  While  the  apparent 
inequality  or  injustice,  even,  in  the  provisions  of  a  will,  are  not 
of  themselves  a  sufficient  reason  for  annulling  the  will  if  other- 
wise valid,  yet  those  provisions  may  present'  potent  circumstances 
reflecting  both  upon  the  testator's  capacity  as- well  as  the  opera- 
tion of  influence  upon  his  mind,  though  a  person  perfectly 
rational  and  sound  may  be  subject  to  control  by  influence-  from 
others.  Therefore,  it  is  not  necessary  in  proving  undue  influ- 
ence or  restraint  that  there  should  also  be  proof  of  incapacity, 
though  the  proof  of  one  may  tend  to  prove  the  other.  While 
you  may  consider  the  provisions  of  the  will,  still  you  must  re- 
member that  it  is  not  your  province  to  pass  on  the  justice  or  the 
fairness  thereof,  but  its  provisions  may  be  considered  in  connec- 
tion with  all  the  testimony  and  the  circumstances  surrounding 
the  testator,  for  the  purpose  of  determining  whether  it  has  such 
existence.  You  are  not  at  liberty  to  make  a  will  for  the  testator, 
but  simply  to  decide  whether  the  one  lie  1ms  attempted  to  make 
is  sanctioned  by  and  fulfills  all  the  requirements  of  the  law.2 

6.  What  constitutes  undue  influence  and  restraint.  To  con- 
stitute undue  influence  and  restraint,  it  must  appear  that  there 
was  such  influence  and  restraint  as  caused  the  execution  of  the 
will  by  the  testator  against  his  own  desires  in  the  matter.  It 
must  appear  by  a  preponderance  of  the  evidence  that  such  undue 


WILLS. 


2163 


influence  and  restraint  was  practiced  with  reference  to  the  will, 
and  it  must  have  affected  or  brought  about  the  provisions  of  the 
will,  or  some  of  them.  Unless  it  has  in  some  manner  affected 
the  making  of  the  will,  or  some  of  its  provisions,  it  can  not  inval- 
idate it.  It  must  destroy  the  free  agency  of  the  testator.  It  is 
not  required  that  any  physical  force  should  be  used,  but  any 
restraint,  or  threats,  or  influence  brought  to  bear  upon  the  tes- 
tator, or  persistent  importunities  which  he  has  not  the  strength 
to  resist,  if  exerted  so  as  to  coerce  him  against  his  desire  and 
purpose  in  making  his  will,  or  any  of  its  provisions,  is  undue 
influence  within  the  meaning  of  the  law.  It  matters  not  how 
slight  or  how  great  the  influence  may  be,  so  long  as  it  destroys 
the  free  agency  of  the  testator.  It  is  immaterial  what  argument, 
influence  or  persuasion  were  brought  to  bear  upon  the  testator, 
provided  that  in  making  his  will  he  carried  into  effect  his  own 
will  and  intentions  and  not  those  of  another. 

It  is  not  unlawful  for  a  person  by  influence,  intercession  and 
persuasion  to  induce  a  will  in  his  or  her  favor,  neither  is  it 
unlawful  to  induce  a  testator  to  make  a  will  in  one's  favor  by 
fair  speeches  and  kind  conduct,  for  this  does  not  amount  to  that. 
kind  of  compulsion,  improper  conduct  or  undue  influence  which 
in  a  legal  sense  will  render  the  will  invalid.  To  have  such  an 
effect  it  must  amount  to  a  moral  force  and  coercion  destroying 

free  agency. 

The  test  of  the  unlawfulness  of  the  influence  is  its  effect  upon 
the  testator's  free  agency.  It  must  not  be  the  influence  of 
affection  and  attachment,  nor  the  mere  desire  to  gratify  the 
wishes  of  another,  but  the  undue  influence  and  restraint  required 
in  order  to  render  the  will  invalid,  must  be  of  such  character  and 
degree  as  to  prevent  the  exercise  of  that  discretion  and  judgment 
which  are  essential  to  a  sound  and  disposing  mind. 

Undue  influence,  like  incapacity,  must  be  shown  to  orisl  at 
the  time  of  making  the  will.  To  determine  this,  the  jury  must 
consider  the  testimony  and  look  to  the  facts  and  circumstances 
occurring  hoth  before  and  after  the  execution  of  the  ml]  as 
reflecting  one  way  or  the  other  upon  the  question  whether  ....due 


2164  INSTRUCTIONS   TO   JURY. 

influence  may  or  may  not  have  existed  or  operated  upon  the 
testator  at  the  time  he  made  his  will.3 

7.  Declarations  of  testator  after  making  of  will.  The  declara- 
tions of  a  testator  made  after  the  execution  of  his  will,  are 
admissible  only  for  the  purpose  of  showing  his  condition  of 
mind,  and  the  evidence  of  this  character  which  the  court  per- 
mitted to  be  offered  in  this  case  must  not  be  used  to  prove  the 
fact  that  undue  influence  or  fraud  was  used  to  induce  the  tes- 
tator in  question  to  make  the  will  in  controversy  here,  except 
in  so  far  as  such  declarations  may  evidence  or  show  a  condi- 
tion of  mind  on  the  part  of  the  testator  which  was  easily  sub- 
jected to  such  influence  at  the  date  of  his  will.  The  jury  will 
further  bear  in  mind,  too,  that  it  is  a  rule  of  law  that  probable 
statements,  admissions,  or  declarations  are  to  be  received  and 
considered  by  the  jury  with  great  caution.  The  evidence  consist- 
ing, as  it  does,  in  mere  repetitions  of  oral  statements,  is  subject 
to  much  imperfection  and  mistake.  The  parties  testifying  to 
them  may  be  misinformed,  or  may  have  misunderstood  the  tes- 
tator. It  frequently  happens',  also,  that  the  witness  by  altering 
a  few  of  the  expressions  that  are  used,  caused  an  effect  on  the 
statement  completely  at  variance  with  what  the  party  actually 
did  say.  These  are  the  reasons  for  the  rule  of  caution  sanc- 
tioned by  the  law  concerning  such  testimony.  You  will  bear 
in  mind,  however,  that  as  already  stated,  such  declarations  are 
proper  evidence  to  be  considered  by  you  in  determining  the  con- 
dition of  the  mind  of  the  deceased,  for  the  purpose  of  enabling 
you  to  decide  whether  or  not  it  was  in  such  condition,  or  of  such 
character  as  to  be  easily  subjected  to  the  influences  such  as  are 
averred  in  plaintiff's  petition  and  alleged  to  have  been  exerted 
by  R.  at  the  time  of  the  execution  of  the  will.4 

8.  Directions  as  to  verdict.  Gentlemen  of  the  jury,  these  are 
all  the  rules  of  law  which  the  court  wishes  to  give  you  to  govern 
and  aid  you  in  determining  the  issues  involved  in  this  case.  You 
will  bear  in  mind  that  you  are  the  judges  of  the  weight  and  of 
the  credibility  of  the  witnesses.  You  may  consider  the  appear- 
ance of  the  witness  on  the  stand,  his  or  her  manner  of  testify- 


WILLS.  2165 

ing,  their  apparent  candor,  intelligence,  or  lack  of  intelligence, 
relationship,  business  or  otherwise,  to  the  party,  their  interest, 
if  any,  appearing  from  the  evidence,  their  temper,  feeling  or 
bias,  if  any;  and  all  other  circumstances  appearing  in  connec- 
tion with  the  testimony  on  the  trial. 

If,  gentlemen,  after  a  full,  fair  and  impartial  consideration 
of  all  the  evidence  in  the  case,  without  feelings  of  prejudice  or 
favor,  the  jury  should  find  that  the  deceased  W.  F.  R.  was  of 
sound  mind  and  memory  and  not  under  any  restraint,  your  ver- 
dict should  be  one  sustaining  the  validity  of  the  will.  If,  how- 
ever, you  should  find  by  a  preponderance  of  the  evidence  that 
the  deceased  was,  as  alleged  in  the  petition,  either  of  unsound 
mind  or  memory,  or  that  he  was  at  the  time  of  the  execution  of 
the  will  under  restraint  or  duress  exercised  and  exerted  as 
alleged,  your  verdict  should  be  for  the  plaintiff,  and  you  should 
in  such  event  hold  the  will  to  be  invalid  and  void.5 

i  Physical  weakness,  failure  of  memory,  or  unimportant  mistakes  in  busi- 
ness do  not  show  incapacity.  Wilson  v.  Wilson,  7  N.  P.  (N.S.) 
435,  14  C.  C.  (N.S.)  241.  Mental  capacity — essentials.  Wads- 
worth  v.  Purdy,  12  C.  C.  (N.S.)  8,  21  C.  D.  110.  Locomotor 
ataxia.     Gregg  v.  Moore,  14  C.  C.   (N.S.)   5. 

2  Page  on  Wills,  sees.   132  and  421.     The  nature  of  the  will  may  be  con- 

sidered  by  the  jury   as   a  circumstance.     Id.,  sec.   426;    Crandall's 

Appeal,    63    Conn.    365;    Pooler  v.   Christman,  145    111.   405. 

3  Undue  influence,  elements  of.     Page  on  Wills,  sees.  127-132. 
■•  Page  on  Wills,  sees.  361-423. 

s  Troutman  v.  Reed,  Franklin  Co.  Com.  Pleas,  Kinkead,  J. 

Sec.  2335.     Insane  delusion. 

Your  attention  has  been  directed  to  the  claim  of  the  contest- 
ants that  C.  K.  0.  at  the  time  of  executing  the  paper  writing 
was  possessed  of  an  insane  delusion  concerning  the  chastity  of 
his  wife  and  the  legitimacy  of  her  daughter  L.,  the  plaintiff. 

An  insane  delusion  is  defined  as  a  diseased  condition  of  Hi'' 
mind  in  which  persons  believe  things  to  oxisl  which  exist,  or 
in  the  degree  they  are  conceived  of,  only  in  their  own  imagina- 
tion with  a  persuasion  so  firm  and  fixed  tliat  neither  evidence  nor 
argument  can  convince  them  to  the  contrary. 


2166  INSTRUCTIONS    TO    JURY. 

Whenever  a  person  has  conceived  something  extravagant  to 
exist  which  has  still  no  existence  whatever,  but  in  his  own  heated 
imagination ;  and  whenever  at  the  same  time  having  so  con- 
ceived he  is  incapable  of  being  or  at  least  of  being  permanently 
reasoned  out  of  that  conception,  such  person  is  said  to  be  under 
a  delusion. 

The  insane  delusion  must  consist  at  least  of  a  mistake  of  fact. 
In  order  to  be  insane  delusion,  the  mistake  must  be  one  which 
is  not  based  upon  evidence  or  at  least  without  any  evidence 
from  which  a  sane  man  could  draw  the  conclusion  which  forms 
the  delusion.  And  the  delusion  must  be  such  as  can  not  be 
removed  or  permanently  removed  by  evidence.  In  most  cases 
of  delusion  the  delusion  founds  itself  originally  on  some  slight 
circumstance  the  magnifying  of  which  beyond  all  reasonable 
bounds  is  nearly  or  quite  as  good  in  proof  of  its  being  a  delusion 
as  the  taking  some  absurd  prejudice  which  is  utterly  unfounded 
or  that  rests  upon  no  ba.sis. 

Such  a  delusion  is  called  partial  insanity.  The  law  recog- 
nizes that  there  is  a  partial  insanity  and  a  total  or  general  in- 
sanity. That  a  man  who  is  very  sober  and  of  right  under- 
standing in  all  other  things  may  in  some  one  or  more  particulars 
be  insane;  and  that  such  partial  insanity  may  exist  as  it  re- 
spects particular  persons,  things  or  subjects,  while  as  to  others 
the  person  may  not  be  destitute  of  the  use  of  reason.  And  such 
partial  insanity,  such  insane  delusion,  if  found  to  have  con- 
trolled the  testator  at  the  time  of  making  his  will,  which  causes 
him  to  make  a  will  he  would  not  have  made  but  for  such  delusion, 
would  invalidate  the  will  as  if  made  under  the  effects  of  an 
insanity  ever  so  general. 

The  existence  in  the  mind  of  the  testator  of  mere  delusions 
which  do  not  affect  the  natural  or  selected  objects  of  his  bounty 
is  not  necessarily  inconsistent  with  testamentary  capacity. 

The  jury  is  instructed  that  before  this  will  ran  be  set  aside 
upon  the  ground  of  testator's  unsound  mind,  the  plaintiff  must 
show  not  only  the  insane  delusion  claimed,  but  that  such  insane 
delusions  affected  and  controlled  the  provisions  of  the  will  as 


wills.  2167 

to  M.,  C.  or  L.  0.  If  it  existed  but  did  not  affect  or  influence 
the  provisions  as  to  them  or  either  of  them,  they  can  not  be  beard 
to  complain  in  this  case. 

If  you  find  from  the  evidence  that  although  C.  K.  0.  had  suffi- 
cient capacity  to  attend  to  the  ordinary  business  affairs  of  life, 
yet  if  the  will  here  offered  was  made  at  a  time  when  the  testator 
C.  K.  0.,  was  laboring  under  the  influence  of  insane  delusions 
concerning  the  legitimacy  of  the  plaintiff  and  the  chastity  of 
his  wife,  plaintiff's  mother,  and  is  the  product  of  such  delusions 
or  partial  insanity,  and  that  he  was  controlled  in  the  making  of 
said  will  by  said  delusions,  and  which  caused  him  to  make  a 
will  which  he  would  not  have  made  but  for  such  delusions,  then 
said  C.  K.  0.  was  not  of  sound  mind  and  memory  as  is  contem- 
plated and  required  by  the  law,  and  any  paper  purporting  to 
be  a  will  executed  by  him  under  such  circumstances  is  not  a 
valid  will  and  the  jury  should,  in  that  event,  find  the  issue  for 
the  contestants. 

In  determining  the  question  of  mental  capacity,  it  is  your 
duty  to  take  into  consideration  the  provisions  of  the  will  itself, 
in  connection  with  all  the  other  testimony  and  also  the  sur- 
rounding circumstances  not  only  as  bearing  on  the  question  of 
sound  mind,  but  that  of  undue  influence  as  well.  The  fact  that 
the  testator  made  no  provision  in  his  will  for  the  children  of  his 
second  wife,  may  be  considered  in  connection  with  these  ques- 
tions. And  if  it  appear  from  the  evidence  that  the  testator 
before  his  death  sought  to  have  such  children  come  and  live  with 
him,  offering  to  provide  for  them  all  the  neeessary  coin  forts  of 
life,  but  that  they  refused  to  do  this  and  neglected  to  conic  and 
see  him,  of  which  he  complained,  this  also  may  be  considered 
as  bearing  on  the  question  of  the  soundness  of  Ids  mind,  whether 
testator  was  at  the  time  of  making  his  will  laboring  under  insane 
delusions  and  was  controlled  by  such,  as  well  as  that  of  undue 
influence.1 

iLuella  Ott,  an  infant,  etc.,  v.  Elizabeth  E.  Stein,  ct  ah,  Com.  Pleas  Court, 
Franklin  Co.,  Ohio.     Eathmell,  J. 


2168  INSTRUCTIONS    TO   JURY. 

Eccentricities,  peculiarities  or  delusions  must  not  affect  either  the  natural 
or  selected  objects  of  his  bounty.  Wadsworth  v.  Purdy,  12  C.  C. 
(N.S.)  S.  21  C.  D.  110.  Insane  delusion.  Page  on  Wills,  sees. 
104-109. 

Sec.  2336.     Old  age  and  sickness  as  affecting  mental  capacity. 

The  law  requires,  as  I  have  said  to  you,  that  the  testator  shall 
be  of  sound  mind  and  memory.  This  requires  that  he  shall  have 
sufficient  mental  capacity  to  transact  the  ordinary  business  of 
life,  and  if  he  possesses  this  capacity,  then  he  has  the  legal  right 
to  dispose  of  his  property  by  will  without  regard  to  the  wishes 
of  others.  The  question  for  your  determination  upon  this  point 
is,  was  J.  X.  II.  .it  the  time  of  the  execution  of  this  document  of 
sound  mind  and  memory  .'  It  is  immaterial  how  soon  thereafter 
he  may  have  become  of  unsound  mind  and  memory,  if  at  the 
time  of  the  execution  of  the  document  he  was  of  sound  mind 
and  memory.  The  purpose  of  the  introduction  of  evidence 
touching  his  condition  prior  to  and  subsequent  to  the  date  of  the 
execution  of  the  instrument  is  to  reflect  light  upon  and  enable 
you  to  determine  what  his  condition  was  at  the  time  of  the  exe- 
cution thereof. 

J.  N.  II.  was  not  incapable  of  making  a.  will  merely  because  he 
may  have  become  enfeebled  from  age,  sickness  or  other  causes 
so  long  as  he  retained  sufficient  mental  capacity  to  transact  the 
ordinary  business  affairs  of  life.  The  law  does  not  require  that 
he  should  have  been  able  to  conduct  long-continued  business 
transactions.  If,  however,  his  mind  had  become  enfeebled  from 
age,  sickness  or  other  causes  so  that  its  action  was  not  such  as 
it  would  have  been,  had  his  mental  faculties  been  in  a  normal 
condition  and  so  enfeebled  and  weakened  that  the  jury  finds 
that  the  paper  writing  does  not  express  the  real  intention  of 
a  sound  and  disposing  mind,  then  the  paper  purporting  to  be 
the  last  will  and  testament  of  J.  N.  II.  would  not  be  his  valid 
last  will  and  testament. 

The  law  also  requires  that  the  testator's  memory  be  sound. 
A  man  may  reason  with  apparent  soundness  upon  the  facts 
known  to  him  and  yet  that  faculty  of  the  mind  known  as  memory 


wills.  2169 

may  be  so  weakened  that  facts  formerly  known  to  him  may  not 
be  in  his  mind.  Under  such  circumstances  his  ignorance  of 
facts  may  cause  him  to  act  in  an  entirely  different  way  from  what 
he  would  have  acted  had  such  facts  been  known  to  him.  The 
law,  therefore,  requires  that  the  testator  shall  be  able  to  hold 
in  his  mind  the  nature  and  extent  of  his  property,  the  persons 
who  would  be  the  natural  objects  of  his  bounty,  and  their  rela- 
tionship to  him  and  their  conditions  and  necessities.1 

i  John  Hart,  et  al.,  v.  William  Hart,  et  al.     Com.  Pleas  Court,  Franklin 
Co.,  O.     Bigger,  J. 

Sec.  2337.    A  concise  charge  in  will  contest  in  different  form, 
embracing — 

1.  Who  may  make  a  will. 

2.  Probate  of  will  prima  facie  evidence — Burden  of  proof. 

3.  Testator  must  be  of  sound  mind  and  memory. 

4.  Testator  must  know  extent  and  value  of  property,  and 

natural  objects  of  his  bounty. 

5.  Provisions  of  will  to  be  considered. 

6.  Need  not   be   technically  insane — Weakness  of  intellect 

sufficient  when 

7.  Undue  influence. 

8.  Inequality  or  injustice  of  will. 

1.  Who  may  make  a  will.  Under  the  law  of  Ohio  any  person 
of  full  age  and  sound  mind  and  memory  and  not  under  any 
restraint  may  make  a  will  and  give  and  bequeath  his  property, 
real  or  personal,  to  any  person  or  organization. 

2.  Probate  of  will  prima  facie  evidence — Burden,  of  proof. 
Where  a  will  has  been  probated  by  the  probate  court,  as  in  this 
case,  that  fact  is  prima  facie  evidence  of  the  due  attestation, 
execution  and  validity  of  the  will,  and  the  duty,  therefore,  de- 
volves upon  the  plaintiff  to  prove  to  you  by  the  preponderance, 
that  is  to  say,  by  the  greater  weight  of  the  evidence,  that  the 
alleged  will  is  not  the  last  will  and  testament  of  J.  S. 

3.  Testator  must  be  of  sound  mind  and  m<  mory.  To  make  a 
valid  will,  J.  S.  must  have  been  at  the  time  \u-  executed  this  Inst 


2170  INSTRUCTIONS   TO   JURY. 

will  of  sound  mind  and  memory.  To  be  of  sound  mind  and 
memory,  as  understood  in  law,  it  was  sufficient  if  J.  S.  at  that 
time  understood  the  nature  of  the  business  in  which  he  was  then 
engaged,  knew,  unaided  from  any  outside  source  or  suggestion, 
what  property  he  then  owned  and  was  disposing  of,  and  realized 
the  relationship  which  existed  between  him  and  those  who  had  a 
claim  upon  his  bounty  and  was  capable  of  making  a  rational 
selection  among  them.  Since  the  order  of  probate  of  this  will 
raised  a  presumption  that  the  paper  so  probated  is  the  valid  last 
will  and  testament  of  J.  S.,  a  verdict  setting  aside  the  said  will 
on  this  ground  can  not  be  returned  by  you  unless  the  evidence 
adduced  by  the  plaintiff  outweighs  both  this  presumption  arising 
from  the  order  of  the  probate  court  admitting  the  will,  and  also 
the  evidence  adduced  by  the  defendants. 

4.  Testator  must  know  extent  and  value  of  property,  and 
nature  of  objects  of  his  bounty.  The  law  does  not  undertake 
to  test  by  any  specific  method  a  person's  intelligence  and  to  define 
the  exact  quality  of  mind  and  memory  which  a  testator  must 
possess,  but  it  does  require  him  to  be  capable  of  knowing  the 
extent  and  value  of  his  property,  the  names  and  relationship  of 
those  persons  who  are  the  natural  objects  of  his  bounty,  their 
deserts  with  reference  to  their  conduct  and  treatment  of  him  or 
her,  their  conditions  and  necessities,  and  be  capable  of  retaining 
all  these  facts  in  his  memory  sufficiently  to  have  the  will  pre- 
pared and  executed.  His  mental  capacity  is  not  to  be  measured 
by  any  exclusive  test  of  his  capacity  to  do  any  other  particular 
act  or  business,  but  his  mental  capacities  with  reference  to  other 
acts  shall  be  considered  by  you  in  determining  the  question 
before  you  here. 

In  making  this  alleged  will  J.  S.  must  at  that  time  have  had 
sufficient  strength  and  clearness  of  mind  and  memory  to  know, 
without  prompting,  the  nature  and  extent  of  the  property  of 
which  he  was  about  to  dispose,  the  nature  of  the  act  which  he  was 
about  to  perform,  the  names  and  identity  of  the  persons  who 
were  the  proper  objects  of  his  bounty  and  his  several  relations 
towards  them.      If  a  person  persistently  believes  supposed  facts 


WILLS.  2171 

which  have  no  real  existence  against  all  evidence  of  probability 
and  conducts  himself  upon  an  assumption  of  their  existence, 
then,  so  far  as  those  facts  are  concerned,  he  is  of  unsound  mind. 
The  claim  is  put  forth  by  the  plaintiff  that  at  the  time  he  made 
this  will,  J.  S.  had  an  arbitrary  belief,  without  cause  or  reason, 
that  she  was  not  his  child.  To  properly  measure  J.  S.'s  mental 
condition  in  this  regard,  you  will  consider  all  the  evidence  with 
reference  to  the  relationship  existing  between  him  and  the  plain- 
tiff. 

5.  Provisions  of  will  to  be  considered.  In  determining  the 
general  question  of  the  mental  capacity  of  J.  S.,  it  is  your  duty 
to  take  into  consideration  the  provisions  of  the  alleged  will 
itself  in  connection  with  all  the  other  testimony  and  all  the  sur- 
rounding circumstances,  and  this  you  will  do  in  determining 
the  question  of  undue  influence  as  well. 

6.  Need  not  be  technically  insane — Weakness  of  intellect  suf- 
ficient when.  It  is  not  necessary  that  the  testator  should  be 
shown  to  be  technically  insane ;  weakness  of  intellect  or  loss  of 
memory,  whether  occasioned  by  disease  or  bodily  suffering  or 
infirmity  or  from  all  or  some  of  these  combined,  may  render  a 
man  incapable  of  making  a  valid  will,  provided  such  weakness 
of  intellect  or  loss  of  memory  really  and  in  fact  disqualified  him 
from  knowing  or  appreciating  the  consequences  and  effect  of 
his  act  and  of  fairly  considering  and  weighing  the  just  deserts 
of  all  the  natural  objects  of  his  bounty.  Weakness  of  mind  and 
memory  will  not  disqualify  one  from  disposing  of  his  property 
by  will  unless  such  weakness  goes  to  the  extent  of  rendering 
him  incapable  of  appreciating  the  nature  and  extent  of  his  prop- 
erty or  the  rights  and  claims  of  those  who  are  the  natural  ob- 
jects of  his  bounty  and  the  nature  and  consequences  of  the  will 
he  makes. 

7.  Undue  influence.  Capacity  to  make  a  will  involves  free- 
dom from  such  undue  influences  as  constrain  the  party  t<>  act. 
against  his  will  or  subdue  his  will  until  it  ceases  to  act  for  itself 
and  acts  under  the  dictates  of  the  will  of  another.  This  capacity 
may  be  destroyed  or  overcome  without  actual  force  or  coercion. 


2172  INSTRUCTIONS   TO   JURY. 

Any  improper  or  wrongful  restraint,  machination  or  urgency 
or  persuasion  whereby  the  will  of  a  person  is  overpowered  and 
he  is  induced  to  do  or  forbear  an  act  which  he  would  not  have 
done  or  forborne,  had  he  been  left  to  act  freely,  is  undue  influ- 
ence. Again,  undue  influence  has  been  defined  as  any  influence 
brought  to  bear  upon  a  person  entering  into  an  agreement  or 
consenting  to  a  disposition  of  property  which,  having  regard  to 
the  age  and  capacity  of  the  party,  the  nature  of  the  transaction, 
and  all  the  circumstances  of  the  case,  precluded  the  exercise  of 
free  and  deliberate  judgment.  It  is  not  necessary  that  undue 
influence  should  have  been  practiced  at  the  time  of  making  the 
will,  but  it  is  sufficient  if  the  will  was  made  after  the  influence 
was  exerted  and  as  a  result  thereof,  and  while  the  testator  was 
under  its  general  controlling  and  continuing  influence.  If  J.  S. 
was  by  undue  influence  induced  to  make  this  alleged  will,  then, 
I  charge  you  that  this  alleged  will  was  not  in  fact  his  will  and 
you  must  so  find. 

What  might  constitute  undue  influence  with  one  person  of 
weak  mentality  might  not  be  undue  influence  at  all  with  refer- 
ence to  another  person  of  stronger  mentality.  Proof  of  undue 
influence  must  be  made  either  by  direct  evidence  or  circum- 
stantial evidence  or  both.  Such  evidence  must  be  of  such  pro- 
bative value  as  to  lead  justly  to  the  inference  that  undue  influ- 
ence was  employed  and  that  the  will  did  not  express  the  real 
wishes  of  the  testator.  You  will  consider  all  the  circumstames 
that  have  been  brought  forth  in  this  case,  look  into  the  character 
of  mind  of  the  testator,  his  manner  of  living,  his  environments, 
his  relations  which  he  sustained  to  the  members  of  his  family 
and  his  other  relatives,  and  the  provisions  of  the  will  itself. 

8.  Inequality  or  injustice  of  will.  Any  apparent  inequality 
or  injustice  is  not  a  reason  for  annulling  a  will,  if  otherwise 
valid.  You  will  consider  such  provisions,  if  any  you  find,  along 
with  all  the  other  circumstances  reflecting  upon  the  testator's 
capacity,  as  well  as  upon  the  question  of  undue  influence.  As  a 
matter  of  law,  a  person,  however  wealthy,  has  a  right  to  give 
nothing  even  to  his  child  or  children. 


wills.  2173 

In  this  charge  and  in  the  special  charges,  gentlemen  of  the 
jury,  it  is  impossible  in  any  one  sentence  or  paragraph  to  frame 
a  complete  statement  of  the  law,  and  therefore  you  will  not 
seize  upon  or  excerpt  any  one  or  more  of  the  paragraphs  with 
reference  to  the  law  governing  this  case,  but  you  must  consider 
all  that  the  court  has  stated  to  you  upon  the  subject. 

You  have  heard  the  witnesses,  gentlemen  of  the  jury,  who  have 
testified.  I  need  hardly  say  to  you  that  you  do  not  weigli  evi- 
dence by  the  number  of  witnesses  who  shall  testify,  but  by  the 
credibility  which  you  attach  to  the  evidence  adduced.  You  have 
seen  the  witnesses  upon  the  stand,  noticed  their  intelligence, 
their  demeanor,  their  interest,  if  any  they  may  have  in  the  case, 
their  bias  and  prejudice,  if  any,  and  each  and  every  fact  which 
will  enable  you  to  determine  what  degree  of  weight  and  credi- 
bility to  attach  to  the  evidence  of  each.  You  will  consider  this 
case  dispassionately,  without  feeling  or  prejudice. 

You  must  take  the  law  as  the  court  charges  it  to  you,  and  in 
your  jury  room  let  no  one  of  you  advance  any  proposition  of 
law  inconsistent  or  at  variance  with  the  charge  I  have  given 
you.  You  will  give  to  these  parties,  therefore,  a  full,  fair  and 
conscientious  consideration,  so  that  when  you  have  arrived  at  a 
verdict,  it  may  be  said  that,  in  so  far  as  the  fallibility  of  human 
judgment  permits,  these  parties  have  had  a  fair  and  impartial 
trial  of  this  important  cause.1 
i  Hickman   v.   Swarts,   Franklin   Co.   Com.   Pleas.     Dillon,   J. 

Sec.  2338.     Consideration  of  the  will  itself. 

While  you  may  consider  the  provisions  of  the  will,  yet  you  must. 
remember  that  it  is  not  your  province  to  pass  upon  the  justice 
or  the  fairness  thereof,  but  its  provisions  may  be  considered  in 
connection  with  all  the  testimony  and  the  circumstances  sur- 
rounding the  testator  for  the  purpose  of  determining  whether 
it  has  such  existence.  You  are  not  at  liberty  to  make  a  will 
for  the  testator,  but  simply  to  decide  whether  the  one  he  has 
attempted  to  make  is  sanctioned  by  and  fulfills  all  the  require- 
ments of  the  law.1 
a  Page  on  Wills,  sees.   132,  421,  426. 


2174  INSTRUCTIONS    TO   JUBY. 

Sec.  2339.     What,  if  anything,  may  be  inferred  from  will. 

Look  first  at  the  will.  From  the  face  of  a  coin  you  may  infer 
the  form  of  a  die ;  when  you  read  an  anonymous  manuscript, 
you  may  guess  the  author;  when  you  see  a  footmark  on  the 
sand,  you  may  conceive  the  animal  that  made  it.  So,  from  this 
will  you  may  be  able  to  infer  something  of  the  mind  whose  de- 
sires and  interests  it  is  said  to  have  expressed ;  or  you  may  find 
in  it  the  expressions  and  desires  of  some  other  man  than  H.  S. 
It  is  not  the  number  of  witnesses,  but  the  weight  of  their  testi- 
mony that  should  prevail  with  you,  and  of  how  much  weight 
should  be  given  to  any  testimony  offered  you  are  the  sole  judges.1 
i  Joslyn  v.  Sedam,  2  W.  L.  B.  147. 

Sec.  2340.     Moral  depravity — As  affecting  mental  capacity — ■ 
Notable  charge  of  Longworth,  J. 

1.  Right  to  make  icill.  To  make  a  valid  will  it  is  not  enough 
that  the  testator  shall  subscribe  his  name  to  it  in  the  presence 
of  witnesses.  He  must  do  it  intelligently  and  voluntarily.  It 
is  a  matter  of  experience  that  juries  sometimes  set  aside  a  will 
because  they  do  not  approve  of  its  provisions.  It  is  the  right 
of  every  man,  which  right  can  not  be  taken  from  him,  to  do 
what  he  wills  with  his  own,  unless  the  disposition  he  makes  vio- 
lates some  law ;  and  after  his  death  neither  court  nor  jury  have 
the  power  to  make  for  him  a  disposition  of  his  property  different 
from  the  disposition  which  he  intended  to  make,  upon  any  theory 
that  such  intended  disposition  was  unjust  and  wrong. 

2.  Foolish,  capricious  or  unjust  will.  If,  therefore,  a  man  of 
sound  and  disposing  mind  chooses  of  his  own  accord  to  make  a 
capricious,  a  foolish,  or  an  unjust  will,  such  will  must  stand, 
the  simple  question  in  such  case  being  whether  he  was  of  sound 
and  disposing  mind  at  the  time  when  he  made  it. 

3.  Mind  iveakencd  from  age,  excesses,  disease.  If  his  mind  at 
that  time  was  feeble,  perverted,  or  inert,  whether  weakened  by 
age,  excesses,  disease,  or  other  causes,  that  its  action  was  not 
such  as  it  would  have  been  had  the  mind  been  in  a  natural  con- 


wills.  2175 

dition  and  sound,  so  that  the  jury  may  find  that  such  action 
does  not  express  the  real  intent  of  a  sound  and  disposing  mind, 
then  the  will,  which  is  the  result  and  product  of  such  action,  is 
not  the  last  will  and  testament  of  the  testator. 

Everyone  has  observed  that  men  in  morbid  conditions,  where 
the  brain  is  affected  by  disease,  crazed  by  stimulants,  or  other 
causes,  do  things  which  at  other  times  they  would  never  have 
thought  of  doing,  and  for  which  they  can  hardly  be  held  account- 
able, either  in  law  or  morally.  In  the  eye  of  the  law,  a  man's 
feelings,  desires,  and  acts  at  such  times  are  not  considered  to 
be  the  feelings,  desires,  and  acts  of  the  man. 

Again,  a  man  sometimes  performs  an  act  intelligently,  but 
through  feebleness  of  memory,  is  ignorant  of  some  fact  which 
if  he  had  known  would  have  caused  him  to  act  very  differently. 
For  example,  suppose  that  one  desires  to  divide  his  property 
equally  among  his  children,  and  having  three  children,  if  so 
imbecile  in  memory  as  to  suppose  he  has  only  two,  and  divides 
the  property  between  these  two,  such  disposition  should  not  be 
considered  the  will  of  the  testator,  because  it  clearly  does  not 
express  his  intentions. 

4.  Knowledge  of  property  and  objects  of  h  is  bou  nty.  To  make 
a  will  a  man  must  have  capacity  to  know  and  understand  what 
property  he  has,  who  would  naturally  receive  it,  and  whom  he 
selects  to  receive  it;  he  must  be  able  to  hold  in  his  mind  his 
property,  the  persons  to  whom  he  gives,  and  those,  if  any,  from 
whom  he  withholds ;  he  must  be  able  to  understand  his  true  rela- 
tions to  his  property,  and  to  the  natural  objects  of  his  bounty. 

If  he  is  not  able  to  understand  and  comprehend  these  things, 
then  he  is  incapable  in  law  of  making  a  will. 

It  is  a  very  difficult  thing  to  enter  into  the  mind  of  a  man  and 
see  what  is  there.  It  is  a  difficult  thing  to  determine  definitely, 
from  the  testimony  of  others,  the  true  character,  thoughts,  and 
feelings  which  have  in  times  past  been  the  moving-spring  of 
action  in  one  whose  body  is  now  turned  to  dust.  Nevertheless, 
by  the  light  which  human  testimony  gives,  the  endeavor  must. 
be  made. 


2176  INSTRUCTIONS   TO   JURY. 

In  all  cases  like  the  one  at  bar,  the  first  and  not  the  least  im- 
portant item  of  evidence  bearing  upon  the  condition  of  the  mind 
of  the  testator  is  the  will  itself,  and  although,  as  I  have  said, 
the  fact  that  a  will  is  unjust,  or  wrong,  or  absurd  does  not  of 
itself  prove  the  incapacity  of  the  testator  to  make  a  will,  yet 
it  is  an  item  of  evidence  for  the  jury  to  consider  as  bearing  upon 
the  question,  and  it  is  for  the  jury  to  determine  what  weight 
shall  be  given  it. 

5.  Moral  depravity — Dissolute  habits.  Again,  although  mere 
moral  depravity  does  not  of  itself  unfit  a  man  to  make  a  will, 
yet  a  jury  has  a  right  to  consider  the  fact  of  depravity  in  the 
testator,  if  satisfactorily  shown,  as  a  circumstance  casting  sus- 
picion upon  his  soundness  of  mind. 

The  law  does  not  declare  that  because  a  man  is  dissolute, 
passionate,  unjust,  and  wanting  the  natural  affection  and  par- 
ental instincts,  and  that  he  makes  such  a  disposition  of  his 
property  as  he  ought  not  to  have  made,  these  facts  being  found 
shall  invalidate  such  disposition  by  will.  I  say  the  law  does 
not  declare  that  these  things  shall  make  his  testament  invalid, 
but  it  leaves  to  the  jury,  and  to  the  jury  alone,  the  right  to  say 
how  much  weight  ought  to  be  given  to  such  facts,  if  they  are 
found  to  be  facts,  in  determining  the  condition  of  the  testator's 
mind.  The  Law  very  wisely  provides  that  of  these  matters  the 
jury  shall  be  the  sole  judge.  For  whether  strong  or  whether 
weak,  no  two  human  minds  are  exactly  alike.  The  law  does  not 
pretend  to  furnish  a  foot-rule  by  which  they  shall  be  measured. 
but  declares  the  few  simple  rules  which  I  have  given  to  you, 
and  beyond  these  haves  the  determination  of  the  facts  to  be 
governed  by  those  principles  of  reason  and  common  sense  which 
direet  the  minds  of  all  just  and  honest  men. 

We  all  know  that  there  are  degrees  of  moral  depravity  as 
various  as  the  degrees  of  moral  excellence  and  virtue,  and  it 
may  ho  that  moral  depravity  may  result  in  a  perversion  of  the 
fe^linp-s,  affections,  inclinations,  temper,  habits,  and  moral  dis- 
position, without  any  lesion  of  the  intellect  or  reasoning  facul- 
ties;  and  it  may  be  true  that  some  human  beings  exist  who,  in 


wills.  2177 

consequence  of  a  deficiency  of  the  moral  organs,  are  as  blind  to 
the  dictates  of  justice  as  others  are  deaf  to  melody;  but  whether 
such  or  a  like  condition  of  mind  would  amount  to  unsoundness, 
is  a  question  of  fact  rather  than  law. 

Mere  depravity  or  wickedness,  not  amounting  to  mental  un- 
soundness would  not  of  itself,  standing  alone,  affect  the  will  of 
the  testator. 

It  is  claimed  in  this  case  that  H.  S.  was  a  man  morally  de- 
praved. I  charge  you  that  if  you  find  that  H.  S.  did  not  believe 
that  any  woman  was  virtuous;  that  all  women  were  prostitutes; 
that  they  were  created  simply  for  the  purpose  of  gratifying  the 
lusts  of  man ;  that  they  were  therefore  able  to  support  and  main- 
tain themselves  out  of  the  wages  of  sin ;  and  that  therefore  no 
provision  ought,  in  any  case,  to  be  made  for  them,  and  that, 
acting  on  this  belief,  he  gave  the  bulk  of  his  property  to  his 
son  and  not  to  his  daughters,  and  that  he  made  this  disposition 
of  his  property  by  reason  of  this  belief,  then  you  would  be 
justified  in  finding  that  his  will  is  void. 

However  sound  or  strong  the  mind  of  a  man  might  be  in  other 
directions,  you  would  be  justified  in  finding  that  the  existence 
of  such  belief  amounts  to  insanity  or  monomania. 

I  wish  to  impress  upon  you,  however,  what  I  have  stated 
before,  that  to  justify  your  setting  this  will  aside  upon  such  a 
state  of  facts  as  this  you  must  find  that  such  facts  do  exist. 
A  less  degree  of  moral  depravity,  although  important  as  an  item 
of  evidence  touching  the  question  of  soundness  or  unsoundness 
of  the  mind  of  the  testator,  would  not  of  itself,  standing  alone, 
render  him  incapable  of  making  a  will;  neither  would  this  state 
of  facts  justify  you  in  setting  aside  the  will,  unless  you  should 
find  that  they  amounted  to  unsoundness  of  mind. 

It  is  claimed  that  H.  S.  had,  during  his  lifetime,  suffered 
from  severe  attacks  of  disease;  that  he  had  been  an  intemperate 
drinker,  and  a  man  immoral  and  eareless  in  nil  his  habits  of  life; 
that  he  was  peculiar  and  eccentric  in  his  dress,  his  speech,  and 
his  manner.  All  these  facts,  if  you  find  them  to  be  facts,  you 
have  the  right  to  consider  as  circumstances  bearing  upon  the 


2178  INSTRUCTIONS   TO   JURY. 

question  before  you.  His  feelings,  his  sayings,  his  doings,  the 
whole  history  of  his  life  and  death,  as  disclosed  by  the  evidence, 
are  proper  testimony  for  your  consideration,  and  you  are  the 
sole  judges  as  to  what  and  how  much  effect  shall  be  given  to 
any  and  all  of  them,  keeping  in  view,  however,  that  the  question 
to  be  decided  by  you  is  narrowed  down  to  this:  do  the  papers 
purporting  to  be  the  will  and  codicil  express  the  true  desire  and 
intent  of  the  deceased,  or,  in  other  words,  are  they  the  act  and 
product  of  a  sound  mind?1 
i  Joslyn  v.  Sedam,  2  W.  L.  B.  147.     Longworth,  J. 

Sec.  2341.     Undue  influence — What  constitutes — Another  form. 

To  constitute  undue  influence  and  restraint  it  must  appear 
that  there  was  such  influence  and  restraint  as  caused  the  exe- 
cution of  the  will  by  the  testator  against  his  own  desire  in  the 
matter.  It  must  appear  by  a  preponderance  of  the  evidence 
that  such  undue  influence  and  restraint  was  practiced  with 
reference  to  the  will,  and  must  have  affected  or  brought  about 
the  provisions  of  the  will,  or  some  of  them.  Unless  it  has  in 
some  manner  affected  the  making  of  the  will,  or  some  of  its 
provisions,  it  can  not  invalidate  it.  It  must  destroy  the  free 
agency  of  the  testator.  It  is  not  required  that  any  physical 
force  should  be  used,  but  any  restraint,  or  threats,  or  influence 
brought  to  bear  upon  the  testator,  or  persistent  importunities 
which  he  has  not  the  strength  to  resist,  if  exerted  so  as  to  coerce 
him  against  his  desire  and  purpose  into  making  his  will,  or  any 
of  its  provisions,  is  undue  influence  within  the  meaning  of  the 
law.  It  matters  not  how  slight  or  how  great  the  influence  may 
be,  so  long  as  it  destroys  the  free  agency  of  the  testator.  It  is 
immaterial  what  arguments,  influence,  or  persuasion  were 
brought  to  bear  upon  the  testator,  provided  that  in  making  his 
will  he  carried  into  effect  his  own  will  and  intentions,  and  not 
those  of  another.1 


WILLS.  217!) 

Any  degree  of  influence  over  another  acquired  by  kindness 
and  friendly  attention  can  never  constitute  undue  influence 
within  the  meaning  of  the  law2 

*As  to  unnatural  dispositions,  see  Beach  on  Wills,  sec.   113. 

2Newby,    J.,    in    Graham    v.    Graham,   Highland    Co.    Com.    Pleas.     As    to 

undue  influence,  see  Beach  on  Wills,  sees.  107,  et  seq. 
What  constitutes.     Taphorn  v.  Taphorn,   12  C.  C.    (N.S  )    180    181    22   C 

D.  96, 

Sec.  2342.     Undue  influence — Longworth,  J. 

The  next  question  for  your  consideration  arises  upon  the  claim 
of  the  plaintiff  that  at  the  time  of  executing  these  papers  the 
testator  was  acting  under  undue  influence  exercised  over  him 
by  C.  S.  and  others. 

A  will  must  be  the  expression  of  the  wishes  and  purposes  of 
the  party  who  undertakes  to  make  it;  his  friends  and  family 
may  talk  with  him,  advise  him,  entreat  him,  and  importune 
him.  This  they  may  do,  but  if,  when  this  is  done,  he  intelli- 
gently weighs  what  they  say,  and  having  capacity,  intelligently 
makes  up  his  mind,  determines  his  own  purposes  and  declares 
his  ovm  intentions,  it  is  no  matter  whether  his  own  mind,  when 
made,  agrees  with  their  advice  or  not. 

If  it  is  his  own  choice  or  preference,  it  is  no  matter  whether 
it  originated  with  himself  or  was  suggested  by  others.  If  de- 
ceived by  fraud,  coerced  by  threats,  or  worried  with  importunity. 
or  influenced  by  the  constant  pressure  of  a  dominant  mind. 
which  constrains  him  into  the  execution  of  such  a  will  as  he  would 
not,  of  his  own  inclination,  have  made,  then  the  jury  may  find 
that  undue  influence  has  been  exercised  over  the  mind  of  the 
testator. 

But  in  such  cases  the  test  is  always  this:  Is  the  will  the 
expression  of  the  intent  of  the  testator,  or  of  some  other  per- 
son? Is  it  his  will,  or  the  will  which  some  other  man  has  made 
for  him? 

These  are  the  two  questions  which  you  are  called  upon  to  de- 
cide, and  the  responsibility  of  deciding  them  truly  and  justly 
rests  entirely  upon  you.    There  is  a  general  conflict  of  testimony, 


2180  INSTRUCTIONS   TO   JUKY. 

and  a  great  mass  of  evidence  has  been  submitted  to  you.  The 
witnesses  seem  to  have  described  two  different  persons,  the  one 
corrupt,  degraded,  and  depraved,  possessing  attributes  of  the 
brute  rather  than  the  man,  and  in  whom  all  manhood,  if  it  ever 
had  existed,  has  ceased  to  exist ;  the  other  a  man  who,  although 
perhaps  not  affectionate,  desired  to  be  just,  and,  though  perhaps 
not  spotless  in  life,  had  no  other  or  greater  failings  than  such 
as  are  incident  to  ordinary  humanity,  and  possessed  some  vir- 
tues not  common  among  men. 

It  is  for  you  to  determine  all  questions  concerning  the  weight 
of  the  evidence  and  the  credibility  of  the  witnesses,  using  the 
rules  of  law,  as  I  have  given  them  to  you,  as  a  lamp  to  guide 
you  in  disentangling  the  complicated  obstructions  which  you 
may  find  in  your  way.1 
ijoslyn  v.  Sedam,  2  W.  L.  B.   147. 

Sec.  2343.     Undue  influence — Persuasion  to  make  will — Flat- 
tery, appeals  to  affection. 

It  is  not  unlawful  for  a  person  by  honest  intercession  and 
persuasion  to  induce  a  will  in  his  favor;  neither  is  it  unlawful 
to  induce  a  testator  to  make  a  will  in  one's  favor  by  fair  speeches 
and  kind  conduct,  for  this  does  not  amount  to  that  kind  of  com- 
pulsion, improper  conduct,  or  undue  influence  which,  in  a  legal 
sense,  would  render  the  will  invalid.  To  have  such  an  effect 
it  must  amount  to  a  moral  force  and  coercion,  destroying  free 
agency.  That  which  is  obtained  by  argument,  flattery,  per- 
suasion, and  appeals  to  the  affections,  although  influencing  the 
testator's  better  judgment,  does  not  necessarily  vitiate  the  tes- 
tator's will,  unless  his  free  agency  be  thereby  destroyed,  not- 
withstanding that  but  for  such  influence  the  will  might  not 
have  been  made.  The  test  of  the  unlawfulness  of  the  influence 
is  its  effect  upon  the  testator's  free  agency.  It  must  not  be  the 
influence  of  affection  and  attachment,  nor  the  mere  desire  to 
gratify  the  wishes  of  another,  but  the  undue  influence  and 
restraint  required  in  order  to  render  the  will  invalid  must  be 


WILLS.  2181 

of  such  a  character  and  degree  as  to  prevent  the  exercise  of 
that  discretion  and  judgment  which  are  essential  to  a  sound  and 
disposing  mind. 

Undue  influence,  like  incapacity,  must  be  shown  to  exist  at 
the  time  of  making  the  will.  To  determine  this  you  must  con- 
sider all  testimony,  and  look  to  the  facts  and  circumstances 
occurring  both  before  and  after  the  execution  of  the  will  as 
reflecting,  one  way  or  the  other,  upon  the  question  whether 
undue  influence  may  or  may  not  have  existed,  or  operated  upon 
the  testator,  at  the  time  he  made  his  will.1 

i  Xewby,  J.,  in  Graham  v.  Graham,  Highland  Co.  Com.  Pleas.  Undue  in- 
fluence.    Beach  on  Wills,  sees.  197,  et  seq. 

Sec.  2344.     Nuncupative  will — Words  written  down  not  those 
spoken. 

In  a  suit  to  test  the  validity  of  a  nuncupative  will,  it  is  com- 
petent to  prove  that  the  testamentary  words  reduced  to  writing 
and  probated  are  not  the  words  spoken  by  the  testator,  and  the 
following  charge  is,  therefore,  correct:  If  the  evidence  shows 
that  the  words  actually  spoken  were  substantially  the  same  as 
the  words  written  down  by  the  witnesses,  that  would  be  suf- 
ficient ;  but,  on  the  other  hand,  if  the  evidence  should  show  that 
the  words  written  down  by  the  witnesses,  as  proved  and  pro- 
bated, were  not  substantially  the  same  as  the  words  actually 
spoken,  then  the  will  could  not  stand,  and  their  verdict  should 
be  for  the  plaintiff.1 

i  Bolles  v.  Harris,  34  0.  S.  38. 

The  jurisdiction  exercised  by  court  and  jury  in  trying  contest  of  a  will 
is  virtually  that  of  a  court  of  probate,  charged  with  the  duty  ot 
finally  establishing  or  rejecting  the  will.  It  is  a  proceeding  inter 
partes  Mears  v.  Mears,  15  O.  S.  96;  Converse  v.  Starr,  23  O.  S. 
498;  Bolles  v.  Harris,  supr*. 


INDEX 

A 

Abortion 

By  physician,  general  charge,   instruction,  essential  elements,   intent. 

etc.,  §§  1460-1466. 
elements  of  crime  of,  §  1461. 
testimony  of  husband  as  accomplice,  §  1462. 
belief  that  uterus  contained  dead  foetus,  §  1463. 
presumption  of  innocence,  §  1464. 
unwise    to    convict   on    uncorroborated    testimony    of   accomplice, 

§  1465. 
reasonable  doubt  as  to  intent,  reasonable  probability  of  innocence, 

creates,  §  1466. 

Accomplice  — 

Testimony  of  husband  as,  in  abortion,  §  1462. 
Conviction  on  uncorroborated  testimony  of,  §  1465. 
Testimony  of,  how  to  be  considered,  — bribery,  p.1293. 

of,  offered  immunity,  p.  1297. 

in  burglary,  p.  1329. 
Uncorroborated  testimony  of,  §  1740  and  note. 

different  form,  p.  1495. 

Act  of  God  — 

(See  Common  Carrier  of  Freight.) 
Instruction  what  constitutes,  §  1617. 
Cold  weather  not,  §  1640. 

Admissions  — 

Instructions  as  to  evidence  of,  p.   1296. 
Extra-judicial,  must  be  corroborated,  1303. 

Adultery  — 

(See  Alienation  of  Affections.) 
Adverse  possession  — 

What  constitutes,  §  1692. 

need  not  be  held  under  color  of  title,  5  1693. 
meaning  of  continuous  possession,  S  1694. 
occupation  must  be  of  some  well-defined  limits,  §  1695. 

•J  is:: 


2184  INDEX. 

Adverse  possession — Continued. 

What  constitutes — Cont  inued. 

lines  between  owners,  §  1696. 

abandonment,  §  1697. 

must  extend  to  what.  §  1698. 

mistake  in  boundary   line,  nature  of  occupancy,  §1699. 

declarations  as  to  ownership,  §  1699a. 

Agency  — 

What  constitutes  agent,  §  1467. 

Special  or  general  agent,  S  1468. 

Principal  estopped  to  deny,  when.  S  14C9. 

No  ratification  without  knowledge  of  facts.  §  1470. 

Ratification  of,  \\  itli  knowledge,  can  not  disavow  part.  §  1471. 

Right  to  recover  where  double,  known  to  principal,  §  1472. 

Agent  — 

(See  Agency.) 

Aider  and  abettor  — 

i  See  A.c<  ompxice.) 

Must   be  conspiracy  to  overt  act,   §  1473. 

One  preseni  without  conspiracy.  §  1474. 

In  homicide — charge,  §  147.">. 

Law  as  to,  in  bribery  case,  p.  1274. 

Detective--  engaged  in  entrapment,  not  regarded  as,  p.  1277. 

Testimony    of,  how  considered,  p.   1293. 

Alibi  — 

Defined,  proof,   §  1476. 

character  of  proof,  §  147G. 
in  burglary,  p.  1330. 

Alienation  of  affections  — 

Consortium,  right  of,  §  1478. 

Malice  as  an  ingredient  of  the  wrong,  S  1479. 

Marital  right  gives  exclusive  right  to  intercourse,  §  14b^, 

Act  or  acts  of  defendant  must  be  malicious,  §  1481. 

Conduct  of  husband,  §  1482. 

Acts  of  parents, — rights  and  liabilities,  §  14s:i. 

By  adulterous  relations  with  wife — marriage — adultery — damages, 
§  1484. 

Limitation  of  action  for — husband  voluntarily  bestowing  affections — 
relationship  between  husband  and  wife — malice — aban- 
donment of  husband — damages,   §  1485. 

Claim  of  mistreatment  of  wife  by  husband,  §  1486. 


INDEX.  21S5 

Alienation  of  affections— Continued. 

Connivance  of  or  encouragement  by,  or  misconduct  of  plaintiff  as  bar 

to  recovery,  §  1487. 
Preponderance  of  evidence  only,  essential,  §  1488. 
Burden  and  character  of  proof  of  adultery,  §  1489. 
Measure  of  damages,  §  1490. 

Alighting  — 

From  streiJ,  car.        (See  Street  Railways.) 

Animal  — 

Owner    of,   not   liable   for   injury   if   rightly   where   it  may   be,   unless 
vicious.  §  1491. 
rule  otherwise  where,  breaks  close  of  another,  §  1491. 
Liability  of  owner  of,  trespassing  on  lands  of  another,  §  1492. 
Ferocious  dog  at  large- — knowledge  of  its  character — what  constitutes 

keeping  of,  §  1493. 
Scienter,  proof  of,  §  1494. 

Defense  that  dog  fastened  on  premises,  §  1495. 

Liability  of  trespasser  leaving  gateway  so  horses  escape  into  another 
field,  where  injury  done  in  Ighting  with  strange  horses, 
1496. 
disposition  of  animal.  §  1496,  par.  3. 
fighting  proximate  cause  of  wrongful  trespass,  §  1496,  par.  4. 

Arrest  — 

What  constitutes,   §  1758. 

Without  warrant,  §§  1759,  1760,  1762. 

Assault  and  battery  — 

(See  Statutes  of  Limitation,  Homicide.) 
Defined,  §  1497,  §  1499,  par.  3,  §  1849. 
By  teacher  on  pupil,  §  1498. 

right  of  teacher  to  correct,  §  1498. 
By  railroad  employe  or  flagman  in  flagging  crossings,  §  1499. 
Kegligently  committed,  §  1499,  par.  6. 
'When  committed  in  self-defense,  §  1500. 

force  used  in  repelling  assault  not  nicely  measured,  §  1501. 
Defense  of  self  and  child,  force  used,  §  1502. 

how  far  one  may  go  in  protection  of  self  or  child,  §  1503. 
One  provoking  assault  may  recover  if  he  afterwards  withdrew,   5  1504. 
Damages  recoverable  in  civil  action,  §  1505. 
Effect  of  conviction  in  criminal  prosecution  on  civil   damages,   §  1506 

Assault  with  intent  to  kill  — 

Complete  charge  in,  §  1507.      (See  additional  headings  in  text.) 
Includes  lesser  grades,  §  1508. 
Assault — battery — intent,  §  1509. 


2186  INDEX 

Assault  with  intent  to  kill — Continued.  ' 

WLe  started  the  affray,  §  1507,  par.  h. 

The  law  as  to,  §  1507,  par.  i. 

Malice,  §  1507,  par. 

Intent  to  kill,  §  1507,  par.  m. 

May  find  defendant  guilty  of  assault,  §  1507,  par.  6.  | 

Assumption  of  risk  — 

General  scope  and  extent  of  doctrine,  §  2014. 
of  negligence  of  fellow-servant,  §  2015. 
negligence   of    servant   incompetent   at   time   of   entering   service, 

§2017. 
negligence  of  one  occupying  relation  of  principal,  §  2018. 
of  insufficient  force  when,  §  2019. 
knowledge  of  dangerous  methods  is,  §  2029. 
knowledge  of  work,  and,  §  2030. 

Attorneys  — 

Breach   of   contract  of  employment,   contingent   fee   in  collection   of 

account,  §  1510. 
Presumption    from   employment   of   agreement   to   pay  reasonable   fee, 

§  1511. 
Action  to  recover  fees,  governed  as  other  employments,  §  1512. 
Quantum  meruit  when  no  special  contract,  §  1513. 
Facts  to  be  considered  in  determining  value  of  services,  §  1514. 
expert  opinion  as  to  value  of  services,  §  1515. 

Automobile  — 

Relation  of  owner  and  chauffeur,  §  1516. 

Liability  of  owner  hiring  licensed  chauffeur,   §  1517. 

Master  loaning  servant  to  another  liable,  §  1518. 

Garage  owner  hiring,  with  driver,  hirer  exercising  no  control  except 

to  direct  route,  §  1519. 
Duty  of  one  operating  sight-seeing,  §  1520. 

Liability  of  owner,  for  acts  of  driver  who  takes,  by  express  or  implied 
authority  for  taxi  service,  §  1521. 
ownership  not  evidence  of  agency,  §  1521.  par.  2. 
course  of  employment,  §  1521,  pars.  3,  4,  pp.  1174-1175. 
Ownership  and  operation  of,  by  servant  employed  for  purpose  prima 
facie  liability,  §  1522. 
under  general   denial   plaintiff   must   show   servant   in   service  of 
master,  §  1522. 
Injury    while   crossing    street    from    collision    with,    complete   charge, 
§  1523. 
negligence  of  driver  and  pedestrian,  §  1523,  par.  4. 


INDEX.  2187 

Automobile — Continued. 

Injury  while  crossing  street,  etc. — Continued. 

relative  rights  and  duties  of  driver  and  pedestrian,  equality  of 
right,  §  1523,  par.  5,  §  1530,  §  1533,  pp.  1179-1180,  1184n. 
duty  of  driver  of,  to  negligent  person,  §  1523,  par.  7. 
proximate  cause,  concurrent  negligence,  §  1523,  pars.  8,  9. 
driver  to  keep  vigilant  watch  ahead,  p.  1180. 
Driver  to  anticipate  meeting  pedestrians  at  crossing,  §  1524. 
to  give  signal,  and  adopt  other  precautions,  §  1525. 
duty  as  to  speed,  the  statute,  §  1526. 

violation  of,  prima  facie  negligence,  §  1527, 
Duty  of  driver,  meeting  others  in  street,  reasonable  lookout,  control 
of,  §  1528. 
to  keep  lookout,  reasonable  control  of,  assumption  pedestrian  will 
not  suddenly  turn  back,  §  1529. 
Pedestrian  going  unexpectedly  in  front  of,  §  1530. 
Warning  given  pedestrian  causing  bewilderment,  §  1530. 
Excessive  rate  of  speed  approaching  crossing,  §  1532. 

no  signal,  pedestrian  in  sudden  danger,  choice  between   hazards, 
§  1532. 
Lawful  means  conveyance,  equality  between  pedestrian  and,   §§  1533, 

1534. 
Ordinance  as  to  passing  vehicles  and  carrying  lights,  §  1535. 
Driver  of,  may  assume  pedestrian  will  use  due  care  at  crossing,  §  1530. 
Driver  of,  and  of  other  vehicle  both  negligent — concurrent  negligence 

and  proximate  cause,  §  1537. 
Driver  of,  as  agent  of  owner,  §  1538. 
Driver  of,  at  railroad  grade  crossing,  §  1540. 

Injury  by  collision  between  two,  complete  charge — approaching  street 
crossing,  law  of  road,  speed,  etc.,  §  1542. 
defendant  counterclaiming  for  tort  in  same  collision,   g  1542. 
Though  not  dangerous  instrumentality,  may  become  so,   if  recklessly 

driven,  §  1542,  par.  10. 
Injury  to  guest  of  hirer  from  owner  furnishing  chauffeur,  5  L543. 
contract  of  hiring  for  specified  trip,  §  1543. 
whether  driver  engaged  in  line  of  service,  §  1543. 
plaintiff  must   show    chauffeur    to   have   been    within    business   of 

owner,  p.  1215,  par.  3. 
intoxication  as  affecting  contributory  negligence,  p.   1217,  par.  4. 
evidence  of  declarations  of  intoxication  as  cause  of  injury  as  part 
of  res  (pcstae,  p.  1219.  par.  5. 
Liability  of  garage  keeper  for  safety  of.  bailed  with  him,  §  L545. 

proprietor  to  exercise  supervision  over  employees  <<•  guard  against 

wrongful  taking  out  stored.  §  1540. 
liability  for  allowing  customer's  ant..   i<>  be   taken   out  without 
authority,  8  1547. 
Duty  of  driver  of,  at  railroad  crossing,  §2207. 
when  vision  obscured,  §  2207. 


2188  INDEX. 

Automobile — C  ontinued. 

Duty  of  driver  of,  etc. — Continued. 

may  rely  on  gatpman  giving  notice,   §  2208. 

when  placed  in  sudden  peril,  §  2209. 

imputing  negligence  of  driver  to  occupant,  §  2209. 


B 

Baggage  — 

Duty  of  common  carrier  as  to  delivery  of,  §  1627. 
What  constitutes,  §  1640. 

liability,  as  insurer,  §  1641. 

Bailment  — 

Loss  of  goods  by  negligence  of  storage  company  by  natural  decay  or 

in   negligent  maintenance  of  temperature,   §  1544. 
Liability  of  garage  keeper  for  safety   of  automobile,  §  1545. 

proprietor   of   garage    to   exercise    supervision    over    employees   to 
guard  against  wrongful  taking  out  of  stored  auto,  §  1546. 
liability    for    allowing    customer's   auto   to   be   taken    out    without 
authority,  §  1547. 

Bank — Deposits  and  checks  — 

Cashier  authorized  to  receive  deposits,  §  154S. 

authority  of  president  to  do  same  by  custom  or  usage,  §  15  4S. 
Measure  of  care  required  of  directors  of,  as  to  acts  of  officers,  g  1549. 
Estoppel  to  deny  authority  of  officers,  §  1550. 
Relation   of   directors   of,    to    public,    liability    for    defaulting   officers, 

§  1551. 
Liability  of  drawer  of  check.  §  1552. 

nature  of  check,  rights  and  Liabilities  of  parties  thereto,  §1553. 

Bastardy  — 

Complete  charge,  5  1554. 

Reputation  of  prosecutrix  for  truth,   §  1555. 

of  defendant  for  virtue  and  chastity,  §  1556. 

Bigamy  — 

Defined,  §  1557. 

Remarriage    of    wife    before    seven    years    absence    of    husband,    without 

divorce,  §  1558. 
Common-law  marriage  not  basis  for  prosecution  for,  §  1559. 
Domicile  of  divorced  parties,  §  1560. 

Bill  of  lading  — 

(See  Common  Carrier  of  Freight.) 


INDEX.  2  ISO 


Boarding'  — 

Street  cars.     (See  Street  Railways.) 

Breach  of  promise  to  marry  — 

Contract  of  marriage,  §  1576,  §  1577,  par.  1. 
Complete  charge  in,  §  1577. 

effect  of  physical  condition,  p.  1254. 

request  to  perform  essential,  p.  1254. 

deceit  as  to  age,  p.  1255. 

affliction  with  disease,  p.  1255. 
A^hat  amounts  to  breach,  essentials  as  to  time,  §  1578. 
Promise  in  consideration  of  sexual  intercourse,  §  1579. 
Acts  of  preparation,  §  1580. 
Measure  of  damages,  §  1580a. 

Bribery  — 

Of  state  official,  complete  charge  in,  §  1581.      (For  subjects  embraced 
see  text.) 
law  as  to,  p. 1270. 
to  solicit  bribe,  p.  1270. 

bribe  need  not  be  only  consideration  to  influence,  p.  1272. 
the  intent,  p.  1273. 

jury  sole  judges  of  meaning  of  language,  p.  1273. 
law  as  to  aider  and  abettor,  p.  1274. 
conspiracy  to  obtain  money,  p.  1274. 
entrapment,  pp.  1275,  1276. 
detectives  not  aiders  and  abettors,  p.  1277. 
Solicitation  of  bribe,  S  1582. 

statute  and  essentials  of  crime,  p.  1279. 

what  constitutes,  p.  1280. 

intent  and  motive,  other  alleged  solicitations,  p.  1282. 

meaning  of  language,  p.  1282. 

declarations  received  with  caution,  ]>.  1283. 

admonitions  to  jury,  p.  1283. 
Reputation  of  accusing  witnesses,  §  1583. 
Of  city  official,  complete  charge  in,  S  1584. 

flight,  p.  1293. 

accomplices,  p.  1293. 

admissions,  p.  1296. 

testimony  of  accomplice  offered   immunity,  p.    1297. 

law  as  to,  p.  1298. 

corpus  delicti  to  be  proved,  p.   1300. 

Broker  — 

Real  estate  commission  of,  action  for.  §  1585. 

the  contract,  what  plaintiff  must  establish,  p.  1307. 


2190  INDEX. 

Broker — Continued. 

Real  estate  commission  of,  etc. — Continued. 

when  purchaser  buys  on  terms  other  than  those  communicated  by 

broker,  p.  1307. 
entitled  to  commission  if  owner  declines  to  sell,  p.  1308. 

when  owner  enters  into  enforceable  contract,  p.   1308. 
when,  a  director  of  corporation  purchasing,  §  1588. 
must  show  he  accomplished  all   required  of  him,  that  his  efforts 
wen-  efficient  cause  of  sale,  §  1589. 
if  not.  and  owner  makes  sale,  no  recovery  may  be  had.  §  1589. 
entitled    to,    when    purchaser    produced    though    owner    conducts 

negotiations  and  sells  on  different  terms,  §  1590. 
right  of,  to  commission  when   several  employed,   §  1591. 
purchaser  produced  must  be  client  of  agent  first  conducting  nego- 
tiations, §  1591. 

Building  contract  — 

Substantial  departure  from,  without  consent, — extras,  §  1592. 

Failure    to   do   work    in    workmanlike    manner    according    to    contract. 
§  1593. 

Substantial  performance,  except  slight  deviations,  §  1594. 

Deduction  for  unfinished  parts,  §  1595. 

Owner  estopped  by  conduct  in  acquiescence  in  work  not  done  accord- 
ing to  contract,  §  1  ">!»(>. 
acts  showing  knowledge  of  departure  from,  §  1597. 
settlement  without  fraud  or  mistake,  §  1598. 

As  to  extras,  §  1599. 

Substantial  performance,  §  1600. 

Extras,    whether    contract   express    or    implied,    or    work    voluntarily 
done,  §  1601. 

Burden  of  proof  — 

Of  consideration  when  attack  made,  §  1561. 

Of  insanity,  §  1830. 

Of  self-defense,  §§  1507.  1871.  p.  1640. 

Burglary  - 

And  larceny,  force  necessary  in,  §  1602. 

Degree  of  force,  §  1003. 

Of  a  chicken  or  henhouse,  §  1604. 

Of  dwelling-house,  §  1605 

Maliciously  breaking  and  entering,  §  1606. 

Breaking  and  entering,  §  1607. 

Of  inhabited  dwelling-house,  §  1608. 

Must  be  in  night  time,  §  1609. 

Intent  to  steal,  §  1610. 

Intent  to  steal  from  railroad  car,  §  1611. 


INDEX.  2191 


Burglary — Continued. 

Of  railroad  car,  §  1612. 

entry  into  car,  §  1613. 
Complete  instructions  in,  of  storehouse,  §  1614. 

accomplice,  testimony  of,  §  1614. 

possession  of  stolen  property,  p.  1331. 

the  statute,  p.  1332. 

night  season,  p.  1332. 

maliciously  breaking,  p.  1332. 


c 

Carrier  of  passengers  — 

(See  Railroads  as  Carriers  of  Passengers,  Street  Railways.) 

Change  of  grade  — 

Injury  from,  §  2065. 

Within  authority,  and  without  negligence,  §  2066. 

Improvements  made  in  reference  to  established  grade,  §  2067. 

Statute  as  to,  requirements  of  owner  as  to  claims,  §  2068. 

Requirements  as  to  files  and  surveys,  reliance  upon  by  abutting  owner, 

failure  to  file  claim,  etc.,  §  2060. 
Plans  and  profiles,  owner  may  rely  upon,  §  2070. 
Adopting  county  road  as  street,  §2071. 

Improvement  made  before  grade  established  is  at  one's  peril,  §  2071a. 
Rule  as  to  unreasonable  grade,  §  2072. 
Whether   or    not    premises   abutting   upon    improvements   has   affected 

claim  for  damages,  §  2073. 
Reasonableness  of  grade,  what  to  be  considered,  §2074. 
Recovery  of  interest  on  damage,  §  2075. 
Retaining  wall,  when  necessary,  §  2076. 
Damages,  §§  2077,  2080. 
After  improvement,  §  2078. 

Whether  improvement  made  in  conformity  to  established  grade,  §  207ft. 
Damages,  market  value,  opinion  evidence,  §  2081. 

enhancement  of  value,  §  2082. 

benefits,  §  2083. 

Check  — 

Rights  and  liabilities  of  parties,  §  1553. 

Children  — 

(See  Street  Railways.) 
Contributory  negligence  of,  §2113. 
consent  of,  effect,  §2114. 


2102  INDEX. 

Circumstantial  evidence  — 

In  bribery,  p.  1301. 

in  burglary,  p.  1330. 
in  embezzlement,  p.  1441. 
criminal  cases,  §  1734. 
another  form,  §§  1735,  1736. 


Cocaine  — 


ame  — 

Use  of  as  effecting  mental  responsibility,  p.  1426. 


Commission  — 

Real  estate,  see  Brokeb. 

Common  carrier  of  freight  — 

Defined,  §  1615. 

Common-law  rule  of  liability,  §  1616. 

Act  of  Cod — inevitable  accident,  §  1617. 

Liability  of  express  company  for  loss  of  horse  in  shipping,  §  1618. 

liability  of,  in  absence  of  contract,  p.   1336. 

prima  facie  case  by  delivery,  p.  1336. 

death  of  horse  from  natural  cause  is  act  of  God,  p.  1337. 

duty  of  company  when  horse  falls  in  stall,  p.  1337. 

liability  if  horse  improperly  treated,  p.  1337. 

live-stock  contract,  fixing  rights  and  liabilities,  p.   1338. 
to  be  construed  by  law  of  another  state,  p.  1341. 
Limiting  liability  by  special  contract,  §  1619. 
Limiting  common-law  liability,  burden  on  carrier,  §  1620. 
Not  insurer  as  to  time,  delay  by  unavoidable  accident,  §  1621. 
As  to  delivery  of  goods,  §  1622. 
Presumption  of  loss  by  non-delivery,  §  1623. 
Duty  of  express  company  as  to  delivery  of  goods.  §  1624. 
Rule  as  to  limitation  of  liability,  §  1625. 

by  contract  for  loss  on  connecting  lines,  §  1626. 

duty  as  to  baggage,  delivery,  §  1627. 
Liability  in  absence  of  special  contract,   §  1628. 
Contract  for  transportation  of  vegetables.  §  1629. 
Delay   in   delivery  of  goods,  exemption   of   liability   in   bill   of  lading, 

§  1630. 
Bill   of    lading,   effect   of   between    carrier   and   shipper,   conditions    in 

waiver  of,  §  1631. 
Duty  of  railroad  company  to  furnish  cars,  §  1632. 

duty  to  place  cars  in  suitable  places  for  unloading,  §  1633. 

duty  to  provide  side  tracks,  §  1634. 

reasonable  rules  concerning  car  service,  §  1635. 


INDEX.  2193 

Common  carrier  of  freight — Continued. 

Duty  of  railroad  company — Continued. 

reasonable  of  rules  how  determined,  §  1636. 

recovery  for  car  service,  effect  of  rules  regulating  charges  beyond 
period  for  unloading,  §  1637. 
Bound  to  use  ordinary  care  in  shipment  of  live  stock  when  there  is 

delay,  §  1638. 
Cold  weather,  not  act  of  God,  §  1639. 
Baggage,  what  constitutes,  §  1640. 

liability  of,  that  of  insurer,  §  1641. 

Compromise  and  release  — 

Of  cause  without  knowledge  of  counsel   induced  by  fraud,  burden  of 

proof,  §  1642. 
Claim   of   void   release   for   personal   injury   may   be  set  up   in   reply, 

§  1643. 

Concurrent  negligence  — 

Of  pedestrian  and  auto  driver,  p.  1183. 

Of  driver  of  auto  and  other  vehicle,  §  1537. 

And  contributory  negligence  as  applied  to  autos,  §  1542,  par.  13. 

Doctrine  of,  §  2121. 

When  negligence  of  plaintiff  not  continuing,  but  that  of  defendant  is 

continuing  and  proximate,  §  2122. 
Definition  of,  pp.  2126,  2129. 
Defined  and  explained,  p.  1828. 
Proximate  cause  differentiated  from,  p.  1828. 

Consideration  — 

Burden  of  proof  of,  §  1561. 

Consortium  — 

Right  of,  §  1478. 

Conspiracy  — 

In    bribery    case,    between    defendants    and    others   to   obtain    money, 
p.  1274. 
claims  of,  p.  1302. 
the  law  as  to,  pp.  1303,  1492. 

Contract  — 

Meeting  of  minds,   §  1644. 

By  ratification  when  no  meeting  of  minds  in  beginning.  §  1645. 

Consideration,  §  1646. 

Express  or  implied,  §  1647. 

Made  Tinder  duress  or  compulsion,  §  1648. 

Consideration — exclusive  right  to  patented   invention,  §  1649. 


2194  INDEX. 

Contract — Continued. 

Words  applied  to  trade — "new  dress"  for  paper,  §  1650. 
Implied,  to  be  found  by  jury,  §  1651. 
Parol  evidence  to  vary  written  instrument,  §  1652. 
Latent  ambiguity  in,  §  1653. 

in  oral,  §  1654. 
Defense  of  illegality,  §  1655. 
Meaning  of,  to  construct  and  finish  a  thing  of  the  "finest  quality," 

for  tbe  jury  when,  §  1655. 
Breach  of  covenant  of  lease,  failure  to  repair,  maintain  and  surrender 

premises,  reasonable  use,  reasonable  wear,  §  1657. 

Contract  for  personal  services  — 

For  support  of  parent,  §  1658. 

To  perform  services  by  one  taken  into  family  when  a  child,  §  1659. 

Services  of  child  for  parent,  capacity  of  parent  to  make,  child  member 

of  family,  §  1660. 
Made  by  correspondence,  §  1661. 
Express  or  implied,  proof  of,  §  1662. 
When  implied,  §  1663. 

Burden  when  relation  of  brother,  sister  or  parent  or   child  claiming 
contract   to   prove,   and   rebut   presumption   of  gratuity, 
§  1664. 
Service  rendered  by  grandchild  to  grandparent.  §  1665. 

request  to  perform  implied  from  circumstances,  §  1665. 

circumstances  negativing  promise,  gratuitous  services,  parent  and 
child,  p.  1383. 
Between  employee  and  corporation,  §  1666. 
Action  by  wife  against  executor  of  deceased  father-in-law,  §  1667. 

parent  residing  with   child  services  presumed  gratuitous,  §  1667. 

husband  entitled  to  personal  service  of  wife,  p.  1386. 

contract  must  be  shown  to  warrant  recovery,  p.  1387. 

whether  services  gratuitous,  p.  1387. 

Contributory  negligence  — 

Of  patient,   in  claim  of  malpractice.   §  1008. 

Burden   of   proving,   on    defendant   unless    plaintiffs    testimony    raises 

inference.  §  2034. 
Considered  with  reference  to  directions  of  master,  §  2035. 
Of  servant  of  railway  when  slight  as  compared  with  that  of  master, 

present  statutory  rule.  §  2036. 
Defined   and  explained   in  connection   with   concurrent  negligence,   pp. 

1827,  1828. 
Precluding  recovery  must  co-operate  in  causing  injury,  §2108. 
No  recovery  when  there  is,  §2100. 
must  be  proximate  cause,  §2110. 


INDEX.  2195 

Contributory  negligence — Continued. 

When  plaintiff  must  show  himself  without  fault,  or   rebut   inference 

of  his  own  negligence,  §  2111. 
Burden  of  proving,  §2112. 
As  applicable  to  children,  §  2113. 
Intoxication  as  affecting,  §2115. 

Of  husband  performing  duties  as  such  not  agent  of  wife,  §  2116. 
Of  infant  employe,  §2119. 

County  — 

Liability  of,  for  injury  by  mob,  §  2133. 

Court  and  jury  — 

(See  Province  of  Court  and  Jury.) 

Credibility  — 

Of  witnesses,  a  pertinent  charge,  p.  2043. 

Intoxication  as  affecting,  of  witnesses,  §  1543. 

A  full  instruction  as  to,  of  witnesses,  bribery  case,  pp.  1267,  1291. 

Short  form  in  burglary,  p.  1329. 

Of  witnesses,  §  1730. 

jury  to  consider  physical  conditions,  possibilities  or  impossibilities, 

§  1732. 
jury  not  at  liberty  to  indulge  in  capricious  disbelief  of  testimony, 
§  1733. 

Crossing  — 

(See  Railroad  Crossing.) 

Collision  between  street  car  and  steam  railway  engine  at,  of  track  of 
street  railway,  §  2137. 

speed,  p.  1928. 

whistle,  p.  1928. 

gateman,  p.   1928. 

D 

Damages  — 

Measure  of,  in  personal   injury,  §  195."). 
medical  attendance,  §  1668. 
briefer  form,  §  1669. 
for  injury  to  minor,  §  1670. 
duty  of  injured  to  care  for  himself,  employment   of  physician  as 

affecting,  §  1671. 
by  husband  for  injury  to  wife,  §  167'^. 

where  special  defense  on  account  of  physical  condition  of  plaintiff, 
§  1673. 


2196  INDEX. 

Damages — Continued. 

Measure  of,  etc. — Continued. 

amount  of  compensation,   §  1673o. 

proof  of  wealth  or  financial  condition  in  cases  involving  malice, 
§  19.-if>. 

Danger  — 

Rule  of  law  as  to  obvious,  p.  1834. 

Warning  of.  by  fellow-servant.  §  2027. 

Knowledge  of,  unknown  to  master,  but  known  to  servant,  §  2028. 

Duty  of  master  to  give  warning  of,  §  2039. 

Dangerous  premises  — 

Injury  to  person  walking  along  sidewalk  falling  into  bole  in  front  of 

window,  §  1674. 
duty  of  traveler  on  sidewalk,  p.  1397. 
owner   bound   to  keep   premises   safe  for   persons  going  on  tbem, 

p.  1397. 
liable  only  if  bole  dangerous,  p.  1367. 
when  owner  to  erect  barrier,  p.  1398. 
proximate  cause,  p.  1399. 

Deadly  weapon  — 

(See  Homicide.) 

Death  by  wrongful  act  — 

(See  Statute  OF  Limitations.) 
Action  for  death  by  homicide,  §  1675. 
what  is  excusable  homicide,  8  1676. 
right  of  self-defense,   g  lt>77. 
By    administrator    of    wife,    killed    at   steam    railroad   crossing    while 

riding  with  husband  who  is  driving  team,  §  1678. 
Administrator   may    recover   if   deceased   not   guilty   of   negligence,   p. 

1406. 
Contributory    negligence   of  beneficiaries,    p.    1408. 
Damages,  pp.  1408-1410. 

Measure  of  damages  for  death  of  husband,  wife  and  children  as  bene- 
ficiaries,  p.  1410. 
another  form,  damages  for  death  of  husband,  §  1680. 
for  death  of  young  man,  §  1681. 

intelligent  discretion  to  be  used  in  assessment  of  damages,  §  1682. 
damages   resulting   to    husband    and    children    for   death   of   wife, 

§  1683. 
damages  for  death  of  child.  §  1684. 
measure  of  damages — earning  capacity,   §  1685. 

Declarations  — 

Received  with  caution, — bribery,  p.  1283. 
How  considered,  §8  1727,  1728. 


index.  2197 

Deeds  — 

Execution  of,  under  duress,  §  1686. 

Capacity  to  make,  declarations  of  grantor,  §  1687. 

Covenant    against    encumbrances,   what   constitutes    breach,   damages 

§  1688. 
Mental  capacity  of  grantor,  §  1689. 

Defense  — 

(See  Homicide.) 

Self,  in  assault.      (See  Assault  and  Battebt.) 

Right  of  child,  §  1502. 

Derailment  — 

Of  train,  causing  death,  §  2038. 

Dictagraph  — 

As  evidence,  p.  1268. 

Directors  — 

Measure  of  care  required  of,  of  banks,  §  1549. 

Estoppel  to  deny  authority  of,  §  1550. 

Relation  of  to  public,  liability  for  defaulting  officers,  §  1551. 

Fraud  in  declaration  of  dividend,  i  1805. 

Dividend  — 

Fraudulent  declaration  of,  §  1805. 

liability  of  directors,  pp.  1566,  1568. 

Drainage  — 

(See  Eminent  Domain.) 

Druggist  — 

Degree  of  skill  required,  §  1690. 

Drunkenness  — 

Evidence  of,  in  criminal  case,  considered  for  what  purpose,  §  1748. 
as   affecting  contributory   negligence    of    person    injured    in    auto- 
mobile, p.   1217,  par.  4. 
evidence  of  declarations  as  to.  part  of  res  gestae,   p.    L219,  par.  .">. 

Dynamite  — 

Having  possession  of,  for  unlawful   use,  unlawfully  depositing  same, 
§  1691. 
the  statute,  p.   1422. 

the  charge  and  elements  of  crime,  p.  1422. 
malice  and  intent,  p.  1425. 
alibi,  p.  1425. 
defendant  under  influence  of  cocaine,  p.  1426. 


2198  INDEX. 


E 

Embezzlement  — 

Venue  where  laid,  where  intention  to  commit  formed,  §  1700. 

By  treasurer  of  board  of  education,  §  1701. 

Using  funds  intending  to  repay,  §  1702. 

By  public  officer  elected  or  appointed,  §  1703. 

the  statute,  p.  1438. 

a  fraudulent  purpose,  p.  1438 

official  capacity,  p.  1438. 

agents  of  public  officer,  p.  1430. 

receipt  of  money  by  virtue  of  office,,  p.  1440. 

circumstantial  evidence,  p.   1441. 

reputation  of  defendant,  p.  1442. 
I'.\   agent  of  insurance  company,  §  1704. 

right  <>f  agent  to      mmissions,  p.  1443. 

intent,  p.  1444. 

flight  and  change  of  name,  p.  1445. 

venue,  p.   144G. 

Eminent  domain  — 

Right  of  way   for   railway   purposes,  constitutional  provisions,   §  1705. 

Rules  for  assessing  compensation,  §  170(i. 

Allowance  of  benefit,  p.   1449  note. 

Opinions  of  witnesses  as  to  value  of  property,  §  1707. 

Expert  testimony,  §  1708. 

Assessment  of  compensation,   rules  concerning,   market    value,   §  1709. 

Right  of   public  to  improve  and  use  public  highway,  construction  of 

railroad   in  highway  a   new  use,  §  1710. 
Appropriation  for  telegraph  line,  §  1711. 
Drainage  law,  object  of,  S  1712. 
What  use  will  justify  taking  private  property  for  drainage,  p.  1457. 

benefits  to  private  individuals  for  cultivation  not  sufficient,  §  1714. 

drainage  proceedings,   burden   as  to  questions  of  use,  §  1715. 

number  of  petitioners,  §  171o. 

determination  of  line  of  construction,  §  1717. 

compensation  for  lands  taken,  §  1718. 

view  of  route  by  jury,  §  1719. 

Entrapment  — 

Into  crime. — bribery — status  of  participants,  p.  127i>. 
defendant  may  be  guilty,  though  there  be,  p.  1276. 
immunity  of  detectives,  pp.   1277,  1278. 

Estoppel  — 

To  deny  agency.  §  1469. 
Defined,  §  1720. 


INDEX.  2199 

Estoppel— Continued. 

Conduct  must  cause  prejudice  or  injury,  §  1721. 
Intent  to  mislead  not  essential,  §  1722. 
Statement  must  be  acted  upon,  §  1723. 

Evidence  — 

And  testimony  distinguished,  §  1542,  par.  3,  §  1726. 

Negative,  p.  1291. 

General  instruction  as  to,  §  1724. 

Preponderance  and  weight  of  the,  §  1725. 

no  degree  of,  p.  1468«. 

weight  may  be  shown  by  greater  or  less  number  of  witnesses  as 
jury  view  it,  credibility  to  be  first  decided,  §  1726. 
Declarations,  statements  or  admissions,  how  considered,  §  1727. 

declarations  against  interest  in  criminal  case,  §  1728. 
Inference   drawn   from   conduct   of   parties   and   omission   to   produce 

evidence,  §  1729. 
Credibility,  §  1730. 
Circumstantial,  in  criminal  cases,  §  1734. 

another  form,  §§  1735,  1736,  p.  1496. 
Negative  and  affirmative,  §  1737. 

Weight  given  medical  expert,  as  to  personal  injury,  §  1738. 
Medical,  as  to  human  blood,  §  1739. 
Uncorroborated,  of  accomplice,  §  1740  and  note,  p.  1495. 
Of  previous  good  character  in  criminal  case,  §  1741. 

short  charge  to  in  note,  §  1741,  p.  1483. 
Of  conduct  importing  guilt,  §  1742. 
As  to  recognition  of  accused,  §  1743. 
Of  flight  of  accused,  §  1744. 
Consideration  of  unanswered  questions,  §  1745. 
Conflict  in,  §  1746. 
Reasonable  doubt,  §  1747. 

Of  drunkenness  in  criminal  case,  for  what  purpose  considered,  §  1748. 
Degree  of,  in  claiming  fraud  obtaining  insurance,  p.   1545. 
Failure  of  party  to  offer,  or  to  make  explanation,  naturally  expected 

of  him,  p.  1557. 
Failure  to  call  witness,  p.  1557. 
Jury  to  reason  from  probabilities,  p.  1557. 
Failure  to  recollect  important  facts,  p.  1557. 

Excavations  — 

In  streets,  negligence  in  making,  §2085.      (See  StbeeTS.) 

Extras  — 

(See  Building  Contracts.) 


2200  INDEX. 


Failure  — 

To  call  witness,  p.  1557. 

False  claims  — 

Making  out  and  presenting,  to  public  officers,  §§  1749-1752. 
under  statute,  §  1749. 
legal  knowledge  of  fact,  §  1750. 
intent,  proof  of,  8  1751. 
presented  by  state  official,  §  1752. 

conspiracy,   p.   1492. 

proof  of  prior  acts,  p.   1404. 

uncorroborated  testimony  of  accomplice,  p.  1495. 

False  imprisonment  — 

Defined,  S§  1753,   17.14. 

means    of    accomplishing    detention    or    restraint    otber    tban    by 

formal   arrest.   §  1754. 
different  form  of  definition,  §  1755. 

detention  while  under   investigation  at  police  station,  §  1755. 
Trespass  to  person,  elements,  definition,   g  175tl. 
Burden  on  plaintiff  to  prove  unlawful  restraint.  $  1757. 
Arrest  and  imprisonment,  what  constitutes,  §  175s. 
arrest  by  officer  without  warrant,  §  1759. 
distinction  between  felonies  and  misdemeanors,   §  1760 
person    arrested    without   warrant    can    not    be   held    longer   than 

necessary  to  obtain  warrant,  §  1761. 
of  witness  without  warrant.  §  1762. 
Liability  of  several  arresting  officers,  §  1763. 
Probable  cause.  §  1764. 

right  of  officers  of  police  department  to  make  investigation,  §  1765. 
responsibility  of  chief  of  police  if  person  brought  in  for  investi- 
gation   without    formal    arrest    is    detained    by    mistake, 
§  1766. 
Damages,  §  1767. 

Arrest  and  detention  of  guest  at  hotel  supposed  t<i  b,    using  room  for 
immoral  purposes,  §1768. 
responsibility  of  hotel  proprietor,  §  1 7 » "> s . 

claim  of  justification  that  wife  of  guest  occupied  room  without 
right,  p.   1510. 
Compensatory  damages,  p.  1511. 
Exemplary  damages,  p.  1512. 
Arrest  and  detention,  p.  1508. 

Where  fact  of  imprisonment  and  discharge  conceded.  §  1769. 
burden  of  proof,  p.   1515. 

to  prove  just  itieat  ion.  p.  1515. 
when  arrest  may  be  made  for  misdemeanor,  p.  1516. 


INDEX.  2201 

False  representations  — 

(See  Fraud.) 

Fellow-servants  — 

Who  are,  when  one  placed  in  control  of  another,  §  2020. 

Rule  for  determining  who  co-employe  or  vice-principal,  brakeman  and 

foreman,  §  2021. 
Conductor  and  brakeman,  §  2023. 
Engineer  and  train  dispatcher,  §  2024. 
Acts  done  by  request  of  a,  liability  of  master,  §  2025. 
Warning  of  danger  by,  §  2027. 

Financial  condition  — 

As  affecting  damages,  §  1955. 

Fire  — 

Communication  of,  from  locomotive,  §§2221,  2222. 

Flagman  — 

Right  and  duty  and  responsibility  for  railway,  §  1499,  par.  5. 

Flight  — 

Instruction  concerning,  p.  1293,  §  1744. 
and  change  of  name,  p.  1445. 

Flying  switch  — 

Shunting  cars  across  street  crossing,  §  2214. 

Fraud  — 

Not  presumed,  burden  of  proving,  §  1770. 
Remedies  for,  rescission  and  restoration,  §  1771. 
Defined.  §  1772. 

proof  of,  §  1773. 
Contract  rescinded  and  tender  made.  8  1774. 

election  to  rescind  within  reasonable  time,  §  1775. 
Representation  must  be  material,  g  177<i. 
Misrepresentation  by  concealment,  §  1777. 
False  representations  withoul  knowledge  of  truth,  §  1778. 
Ingredients  of  actionable,  intent  to  deceive.  §  1779. 

puffing  and  commendation,  §  177!'. 

must  be  misled,  §  1779. 
As  to  existing  or  past  fact,  g  1780. 

Fraudulent  promise  coupled  with  intent  not   to  fulfill,  §  1781. 
Fraudulent  promise  not  to  engage  in  business,  §  1782. 


2202 


INDEX. 


Fraud — Continued. 

Representation  as  to  value,  §  1783. 

Jury  to  find  what  representations  made,  must  be  relied  upon,  §  1784. 
On  old  person,  what  constitutes,  proof,  §  1785. 

Fraudulent  purchase  of  goods,  elements,  knowledge  of  falsity,  stating 
belief  without  knowledge  of  truth,  §  1786. 
vendor  may  abide  by  or  rescind,  §  1787. 
liability  of  corporation  for  fraud  of  agents,  §  1788. 
power  of  ag*nt  to  make  statement  as  to  credit  and  financial  con- 
dition of  principal,  §  1790. 
Purchase  of  goods  with  intent  not  to  pay,  insolvency  concealed,  §  1791. 
circumstances  may  establish  falsity,  p.  1553. 
representations  must  be  material  and  relied  upon,  p.  1553. 
In  sale  of  stock  in  proposed  company,  §  1804. 
burden  of  proof,  p.  1555. 
degree  of  evidence,  p.  1555. 

proof  of  intent  and  purpose,  circumstantial  evidence,  p.  1556. 
declarations,  p.  1556. 
failure  of  party  t<>  offer  evidence  or  make  explanation  naturally 

expected  of  him,   p.    1557. 
failure  to  call  witness,  p.  1557. 
jury  may  reason  from  probabilities,  p.   1557. 
failure  to  recollect  important  facts,  p.  1557. 
fraud   (I.  lined  and  explained,  p.   1558. 
must  be  relied  upon,  p.  1558. 
materiality,  p.  1558. 

promises,  when  fraudulent  and  when  not.  p.  1559. 
whether  written  contract  or  previous  declaration  relied  upon,  p. 
1561. 
In  declaration  of  dividend  by  directors,  §  1805. 
burden,  p.  1563. 

wrongful  conduct  supplies  intent,  p.  1563. 
knowledge  of  falsity,  actual  or  imputable,  p.  1564. 
whether  statements  made  knowingly  fraudulent  or  recklessly  so, 

p.  1565. 
duty  of  directors,  p.  1566. 

directors  voting  or  asenting  to  dividend  liable  when,  p.  1568. 
materiality,  p.   1571. 
measure  of  damages,  p.  1571. 
Mercantile  agency,  liability  for  false  reports,  §  1791a. 
Transfer  of  property  by  one  in  debt  without  consideration,  §  1792. 
In  sale  of  horse  whether  vicious,  §  1793. 

purchaser  injured  while  driving,  §  1793. 
vendor's  knowledge  of  defects,  duty  as  to  notice,   §  1794. 
measure  of  damages,  §  1795. 
Representations  assumed  to  be  within  one's  knowledge,  recklessly  made, 
§  1796. 


INDEX.  2203 

Fraud — Continued. 

Fraud  preventing  examination  of  land  in  sale,  §  1797. 
Fraudulent  representations  as  to  location  of  city  lot,'  §  1798. 
Whether   son   fraudulently   pursuades   parent  to   make  beneficial  dis- 
position of  property  to  him,  §  1799. 
Representations  as  to  value  of  stock,  opinions,  §  1800. 
In  obtaining  insurance  policy,  §  1801. 

the  statute,  p.  1544. 

degree  of  evidence,  p.  1545. 
Its  definition  and  elements,  p.  1546. 

Measure  of  damages  exchanging  land  for  merchandise,  §  1802. 
Concerning   merits,    working   and   adaptibility   of    patented    machine 
§  1803. 

representation  and  warranty  distinguished,  p.  1549. 
essentials,  p.  1549. 

purchaser  to  be  diligent,  p.  1550. 

when  facts  peculiarly  within  knowledge  of  other  party,  p.   1550. 

existing  facts  distinguished  from  opinion  and  dealers  talk,  p.  1550. 

matters  within  knowledge  of  vendor,  p.  1550. 
Of  vendee  in  purchasing  property,  §  2244. 

Frightening  horses  — 

In  field  by  unnecessary  blowing  of  whistle  of  traction  engine,  §  2139. 

Frog  — 

Failure  to  block,  §  2226. 


G 

Gambling  contracts  — 

For  sale  of  grain  to  be  delivered  in  the  future,  §  1806. 
intention  of  parties  governs,  p.  1573. 

fact  that  one  party  acts  as  commission  merchant  does  not  change 
relation,  §  1807. 
Money   lost  by   person   dependent   for  support  on   one   losing   money, 
§  1808. 

Garage  proprietor  — 

(See  Bailment.) 

Gift  — 

Inter  vivos,  §  1809. 

What  constitutes  valid,  §  1810. 

Retaining  dominion  over,  §  1811. 

Of  mortgage  or  money  represented,  §  1812. 


2204  INDEX. 

Grand  jury  — 

Complete  and  concise  charge  to,  §  1813. 

Introductory,  §  1814. 

Origin  of,  §  1815. 

To  institute  criminal  proceedings  as  well  as  to  guard  against  unjust 

accusations,  §  1816. 
Oath  and  responsibility  imposed  thereby,  §  1817. 
Special  charge  as  to  bucket-shops,  gambling  in  margins,  §  1818. 
Character  of  evidence  to  warrant  indictment,  §  1819. 
Legal  evidence  only  to  be  considered,  §  1820. 
Looking  at  guilt  and  innocence,  §  1821. 
Scope  of  inquiry,  §  1822. 
Secrecy  must  be  observed,  §  1823. 


H 

Harboring  females  — 

House  of  ill  fame  denned,  of  good  repute.  5  1824. 
harboring  defined,  §  1824. 
good  repute  for  chastity  defined.  §  1825. 

Homicide  —  Murder  —  Manslaughter  — 

Preliminary  instruction  as  to  duty  of  jurors,  §  1826. 

The  indictment.  §  1827. 

Plea, — not  guilty — insanity,   §  1828. 

Burden  of  proof,  §  1829. 

of  insanity,  §  1830. 

degree  of  evidence  to  prove  insanity,  §  1831. 
Insanity,  §  1831a. 
Presumption  of  innocence,  §  1832. 
Reasonable  doubt,  §  1833. 
Circumstantial  evidence.  §  1834. 
Jurors  must  reason  together.  §  1835. 
Credibility  of  witnesses,  §  1836. 

Reputation  of  defendant  for  peace  and  quiet.  §  1837. 
Essential  elements  to  be  proven,  §  1838. 
First  degree  murder  includes  lesser  degree,  §  1839. 
Law  of,  murder  in  first  and  second  degree,  and  manslaughter  defined, 

§  1840. 
Intent,  §  1841. 
Malice,  §  1842. 

Deliberation  and  premeditation.   §  1843. 
Murder   in    second   degree  distinguished    from    murder   in   first  degree, 

§  1844. 
Manslaughter.  §  184"). 

provocation  sufficient  to  reduce  to  manslaughter.  §  1846. 


INDEX.  2205 

Homicide,  etc. — Continued. 

As  to  form  of  verdict,  p.  1617. 

adequate  or  reasonable  provocation,  §  1847. 

reasonable  suspicion  of  infidelity  of  wife  not  sufficient,  §  1848. 
Assault  and  battery  and  assault  defined,  §  1849. 
What  is  essential  to  conviction  in  the  first  degree,  §  1850. 
An  act  feloniously  done,  §  1851. 

Inflicting  mortal  wound  with  deadly  weapon,  inference  from,   §  1852. 
Person  intends  natural  consequences  of  his  act,  §  1853. 
If  not  found  guilty  of  murder  in  first  degree,  may  be  of  second,  §  1854. 
May  find  guilty  of  manslaughter  when,  §  1855. 
May  find  guilty  of  assault  and  battery,  §  1855. 
Defendant  as  an  aider  and  abettor,  §  1857. 

defendant,  though  guilty  of  no  overt  act,  entered  into  conspiracy, 
aider  and  abettor,  §  1858. 
Intent  to  kill  in  murder  in  second  degree,  use  of  deadly  weapon,  §  1859. 
Malice,  cbaracter  of  weapon  used  to  be  considered,  §  1860. 
Manslaughter,  no  malice  in, — provocation,  to  reduce,  §  1861. 

provocation,  all  surrounding  circumstances  to  be  considered,  cool- 
ing time,  §  1862. 
Malice  in  murder,  another  form,  §  1863. 

another  different  form,  §  1864. 
Deliberation  and  premeditation,  another  form,  §  1865. 
"Purposely,"  '"unlawful,"  '"feloniously,"  §  1866. 

Proof  of  purpose  to  kill,  malice,  deliberation  and  premeditation,  §  1867. 
Person  assumes  reasonable  consequences  of  his  own  act,  §  1868. 
Manslaughter,  what  is,  §  1869. 

person  present  doing  no  overt  act  not  aider,  §  1870. 
Self-defense,  see  Self-defense. 
Previous  character  and  rettutation,  §  1880. 

Hotel  keeper  — 

Duty  and  liability,  p.  1510. 

Husband  and  wife  — 

Claims  of  wife  to  stock  on  farm  against  creditor  of  husband,  p.  "2044. 
must  rebut  presumption  of  ownership  by  husband,  p.  '2044. 
must  show  separate  property,  or  receipt  of  money   during  cover- 
ture, p.  2044. 
entitled  to  increase  of  her  stock  though  raised  on  husband's  farm, 

p.  2046. 
estopped  by  conduct  from  claiming  ownership  when,  p.  2047. 

by  fraudulent  purpose  and  conduct,  p.  2048. 
creditor  must  have  knowledge  and  rely  on  apparent  possession  and 

ownership  by  husband,  p.  204S. 
wife  must  diligently  assert  her  ri^lits.  p.  2048. 

charged  with  knowledge  of  law  and  remedial  rights,  p.  2049. 


2206  INDEX. 


I 

Imminent  peril 

Pedestrian  in,  by  auto,  choice  between  hazards,  §  1532. 

Immunity  — 

To  accomplice,  p.  1297. 

Impeachment  — 

Of  witness,  instructions  as  to,  p.  1296,  §  1731. 
what  constitutes  reputation,  §  1731. 

Imputed  negligence  — 

Doctrine  of,  §2117. 
Of  parent  to  child,  §2118. 

Of    driver    of    automobile    to   occupant    injured    at    railroad    crossing, 
§  2210. 

Insanity  — 

A  comprehensive  instruction,  §  1881. 

Defined,  §  1882. 

As  a.  defense,  §  1883. 

Burden  of  proving,  §  1884. 

Use  of  cocaine,  p.  1426. 

Instructions  to  jury  — 

Concerning  the  claims  of  both  parties,  §  2088. 

Insurance,  fire  — 

Burden  to  prove  loss,  or  waiver  of  provisions,  §§  1885,  1890. 

Waiver  to  proofs  of  loss,  §  1886. 

Burden  of  proving  authority  of  a^ont.  §  1886. 

Conditions  as  to  time  of  proof  of  loss,  §  1887. 

Notice  and  proof  of  loss,  §  1887. 

Waiver  of  proofs  inferred  from  acts  of  company,   §  1888. 

mere   silence,  not  sending  agents  to  investigate,  nor   attempt  to 

compromise  not  waiver,  §  1888. 
Proof  of  loss,  when  policy  destroyed  duty  of  company  to  furnish  copy 

or  information,  §  1889. 
failing  so  to  do  may  estop  company,  §  1889. 
Partnership  property,  dissolution  of  partnership,  representation  as  to 

ownership  of  property,  S  1891. 
Vacancy  of  property,  breach  of  condition,  §  1892. 
Wlien  building  is  vacant  or  unoccupied,  §  1893. 


INDEX.  2207 

Insurance,  fire — Continued. 

Waiver  of  forfeiture  because  of  vacancy,  §  1894. 

Total  or  partial  loss,  §  1895. 

Compromise  of  loss  obtained  under  duress,  §  1896. 

Evidence  as  to  value  of  property  as  reflecting  on  charge  of  destroying 

property,  §  1897. 
Cancellation  of  policy,  §  1898. 
Rescission,  §  1899. 
Defense  of  false  representation  as  to  value  of  property,  §  1900. 

when  fraudulent  concealment,  §  1901. 

false  representation  as  to  other  insurance,  §  1902. 

return  of  premium,  §  1903. 
Fraudulent  proofs  of  loss,  §  1904. 
Ownership  of  property,  §  1905. 

Defense  as  to  provision  requiring  production  of  books  for  examination, 
§  1906. 

that  large  quantities  of  oil  and  petroleum  stored,  §  1907. 

that  fire  caused  by  willful  act,  §  1908. 
Seaworthiness  of  steamboat,  negligence  of  owner's  agent,   §  1909. 

Insurance,  accident,  life  — 

Proof  of  claim,  §  1910. 

What  necessary  to  recovery  for  death  upon,  §  1911. 

Consideration,  §  1912. 

Application  for,  statements  how  treated,   §  1913. 

Fraudulent  representations  or  statements  in  obtaining,  see  Fraud. 

Misrepresentations  by  insured,  §  1914. 

what  constitutes  waiver  of,  §  1915. 

concealment  of  material  fact,  §  1916. 

Intoxication  — 

(See  Drunkenness.) 
As  affecting  contributory  negligence,  §2115,  p.  1217,  par.  4. 

Intoxicating  liquor  — 

Action   by   wife   against  person   selling  or   furnishing,   to   intoxicated 
person,  §  1917. 

evidence  of  sales  after  suit,  §  1918. 

who  is  keeper  of  place,  §  1919. 

defendant  must  know  habits,  notice,  damages,  §  1920. 
Belling  to  habitual  drunkard,  §  1921. 
Intoxication  defined,  §  1922. 
Habitual  drunkard  defined,  §  1923. 

Sale  within  two  miles  of  agricultural  fair,  §§  1924.  1926. 
What  constitutes  sale,  §§  1925,  1926. 
What  is,  §  1927. 

What  is  agricultural  fair,  §  1928. 
Sales  by  agent,  §  1929. 


2208 


INDEX. 


J 

Jurors  — 

Duty  of,  to  confer  with  each  other,  pp.  1266,  1290. 
same  in  homicide,  §  1835  and  note. 


Landlord  and  tenant  — 

Duty  of  landlord  to  repair  walks  remaining  under  his  control,  §  1930. 

defects  known  to  plaintiff.  §  1931. 
Whether  premises  rendered  unfit  for  occupancy  on  account  of  fire  so 
rent  not  collectible,  §  1932. 

Larceny  — 

Defined,  §  1933. 

Grand,  essential   allegations  to  he  proved,  §  1934. 

What  constitutes  taking  and  carrying  away,  §  1935. 

Return  of  property,  §  1936. 

What    constitutes,    where    owner    voluntarily    [arts    with    possession 

g  1937. 
Grand,  by  destruction  of  property,  intent,  §1938. 
Of  lost  money,  what  essential  to  constitute,  §  1939. 
Value  of  property  must  he  proved,  §  1940. 
Of  money  found  by  undertaker  on  dead  body,  §  1941. 

to  steal,  defined,  pp.  1715,  1717. 

anything  of  value,  p.l71~>. 

ownership  of  money  found  on  drowned  person,  p.  1715. 

of  defendant  took  money  feloniously  but  a  short  time,  p.  1717. 
Short  charge  in,  §  1942. 

Last  chance  — 

Doctrine  of,  §  2120. 

Lease  — 

Breach  of  covenant  of.  failure  to  repair,  maintain  and  surrender  prem- 
ises, reasonable  use,  reasonable  wear,  §  1657. 

Libel  and  slander  — 

Libel  per  se  defined.  §  1943. 
Libel  defined,  §§  1944,  l!>4.->. 
Constitutional   limitation  of  liberty  of  speech,  scope  of,  §§  1946.   1947. 

reasonable  criticism  by  newspaper,  §  1948. 
Jury  to  decide  whether  tendency  and  effect  is  libelous,  §  1949. 
Publication  construed  as  libelous,  §  1950. 


INDEX.  2209 

Libel  and  slander — Continued. 

Jury  to  find  whether  article  published  of  plaintiff,  §  1951. 

What  is  publication,  who  are  publishers,  §  1952. 

Truth  as  a  defense,  to  be  as  broad  as  charge,  §  1953. 

Innuendo,  meaning  ascribed  thereby  for  jury,  §  1954. 

Proof  of  financial  condition  of  defendants,  §  1955. 

Good  faith  in  making  publication  to  rebut  malice,  §  1956. 

Malice  in  law,  and  in  fact,  §  1957. 

Damages,  compensatory  and  punitive,  §  1958. 

Publishing  information  received  from  others,  §  1959. 

Publication  made  to  whom,  §  1960. 

Slander,  defamatory  words  must  be  spoken  to  some  person,  §  1961. 

when  words  impute  crime,  §  1962. 
Libel,  charge  altering  certificate,  meaning  for  jury,  §  1903. 
Privileged  communications  made  to  examiner  school  board,  §  1964. 
Libel,  report  of  judicial  proceeding,  privilege,  §  1965. 

publication     report    of    examining    committee    county     treasurer, 
§  1966. 

comments  upon  report  with  good  motives,  §  1907. 

statements  made  to  officer  in  discovering  crime,  §  1968. 
Construction    of    words    and    understanding    of    meaning    by    hearers, 

§  1969. 
Effect  of  adding  excusable  words,  §1970. 
Meaning  of  words  for  jury,  §§  1971,  1972. 
Kinds  of  malice  in  slander,  §  1973. 
Damages,  kinds  of,  §  1974. 

in  libel  per  sc,  when  evidence  rebuts  malice,  §  1975. 

counsel  fees  as  part  of,  §  1976. 

extent  to  which,  published  as  affecting,  §  1977. 
What  constitutes  libel  to  one  in  his  business,  §  1978. 

measure  of  damages  to  one  in  his  business,  §  1979. 

character  and  extent  of  business  and  business  reputation,   §  1980. 

absence    of    malice,    mitigating    circumstances,    acting    fairly    on 
reliable  information,  §  1981. 
Measure   of  damages,    agreement  to   accept   retraction    of   publication, 

§  1982. 
Slander  of  candidate  for  office,  §  1983. 
Libel  against  business  of  bricklayer  and  contractor,  §  l!»ti4. 

same,  measure  of  damages,  §  1985. 

damages  to  be  awarded  in  general,  §  1986. 

Licensee  — 

Duty  not  to  willfully  or  negligently   injure,  after  discovery  <>f  peril, 
p.  2020. 
on  discovery  duty  to  observe  ordinary  care,  p.  2021. 
must  be  something  in  appearance  to  indicate  the   helplessness  or 
danger,  p.  2023. 


2210  INDEX. 

Live  stock  — 

Shipment  of,  see  Common  Carbieb  of  Fbeight. 


M 

Malice  — 

In  assault  with  intent  to  kill,  §  1507,  par.  k. 

In  homicide,  definition,  §§  1842,  1863,  1864,  1867. 

character  of  weapon  used,  §  I860. 
None  in  manslaughter,  §  1861. 
In  alienation  of  affections,  §  1479. 

Malicious  prosecution  — 

Essential  facts  to  he  found,  burden  of  proof,  §  1987. 
Probable  cause,  §§  1988,  1944,  p.  1771. 

malice  inferred  from  want  of,  §  1989. 
Advice  of  counsel,  S?;  1990,  1995,  p.  1773. 
Discharge  by  magistrate,  prima   facie   evidence   of  want  of  probable 

cause.  §  1991. 
Prosecution  must  have  terminated,   §§  1992,  1995. 
Damages,  compensatory,  and  exemplary,  §  1993. 
Complete  charge  in,  §  1995. 

malice,  p.  1773. 

Malpractice  — 

(See  Statutes  of  Limitation.) 
Care  required  of  physician,  §  1996. 

reasonable  and  ordinary  care  required,  §  1997. 

contributory  negligence  of  patient,  §  \ws. 
Liability  of  Burgeon  performing  operation  without  consent,  §  1999. 

consent  presumed  when,  pp.   1777,  1778. 

express  consent  after  physical  examination,  p.   1778. 

authority  to  do  what  reasonably  necessary  to  save  life,  p.  1778. 

patient  chargeable   with   knowledge  from  acts  of  preparation  for 
operation,  p.  1779. 

care  required  after  operation,  p.  1770. 
Liability  of  physician  for  injuries  caused  by  X-ray,  §  2000. 

Manslaughter  — 

(See  TTomtctde. ) 
Defined,  §§  1845.  I860. 

provocation,  §§  1846.  1847. 
infidelity  of  wife,  §  1848. 

all  surrounding  circumstances  to  be  considered,  §  1862. 


INDEX.  2211 

Manslaughter — Continued. 

By  negligent  driving  of  automobile,  complete  charge,  §  2001. 
opinion  as  to  speed,  p.  1783. 
law  of,  '"unlawfully  kills,"  meaning,  p.  1783. 

unlawful  act,  one  prohibited  by  law,  p.  1784. 
statute  as  to  speed,  p.  1785.    . 

opinion  evidence  concerning,  p.  1786. 
violation  of  statute  as  proximate  cause,  p.  1787. 
may  find  guilty  of  assault  and  battery,  p.  1788. 
By  one  attempting  to  arrest  another  for  felony,  §  2002. 
manslaughter  defined,  p.  1789. 

may  make   arrest  for  murder  on   reasonable  cause  without  war- 
rant, p.  1790. 
when  right  to  kill  in  arresting  for  felony  justified,  p.  1791. 
claim  of  self-defense,  p.  1792. 
Negligent  driving  of  automobile  as  forbidden  by  statute  constitutes, 

§  2003. 
Contributory  negligence  of  deceased  no  defense  in,  caused  by  neglect 
of  driver  of  auto,  §  2004. 

Marriage  — 

(See  also  Breach  of  Promise.) 
What  constitutes,  §  2005. 
Common-law  marriage,  §  2006. 

note  on,  pp.  1797-1799. 
Legitimacy  of  children,  §  2007. 

In  another  state  forbidden  by  laws  of  such  state  followed  by  cohabita- 
tion, §  2008. 

Master  and  servant  — 

General  duty  of  master,  §  2009. 
selection  of  servants,  §2010. 

of  railroad  to  furnish  adequate  number,  §2011. 
failure  so  to  do  as  proximate  cause,  §  2012. 
knowledge  of  inadequate  force  by  servant,  §  2013. 
servant  becoming  incompetent  subsequent  to  selection,  §2016. 
Assumption  of  risks,  §§2014-2019.      (See  Ass.  mition  of  Risk.) 
Fellow-servants,  §2020.      (See  Fellow-skkyants.  ) 
Respondeat  superior,  §2022.     (See  Respondeat  Superior.) 
Warning  of  danger  by  fellow-servant,  §  2027. 

Knowledge  of  danger  unknown  to  master,  and  known  to  servant,  «  2028. 
Duty  of  railroad  conductor,  §2031. 
Knowledge  of  defect,  burden  to  rebut.  §  2032. 
Duty  of  railroad  as  to  inspection,  §2033. 

Servant   injured  working  on   derrick   car— negligence   by    running  car 
into  same  without  disconnecting   machinery,   §2037. 
law  of  another  state  governing,  p.  1824. 


1211  INDEX. 

Master  and  servant — Continued. 

Servant  injured,  etc. — Continued. 

duty  to  provide-  safe  place  to  work,  p.  1826. 

contributory  negligence,  p.  1827. 
Death  of  engineer  from  derailment  of  train,  §  2038. 
Duty  of  master  to  give  warning  of  danger,  §  2039. 
Injury  caused  by  defective  guy  supporting  derrick,  §  2040. 

defect,  defective,  meaning,  p.   1837. 

knowledge,  promise  to  repair,  pp.  1837,  1838. 

appliance  of  simple  construction,  p.  1838. 

disobedience  of  instructions,  p.  1839. 
Measure  of  damages,  §  2043. 
Injury  to  child  of  employee.  §  2044. 
Relation  of  servant  and  agency  inferred  from  facts  and  circumstances, 

§  2046. 
Liability  of  fatber  for  negligence  of  minor  son  driving  auto,  p.  1206. 

auto  not   dangerous   instrumentality,   may  become  so,  legislative 
regulations,  p.  1207. 

implied  authority  by  father  to  son  to  use  and  drive  auto,  p.  1207. 

Mental  capacity  — 
(See  Wnxs.) 
To  make  deed,  §  1689. 
From  use  of  cocaine,  p.  1426. 

Mercantile  agency  — 

Liability  for  false  reports,  §  1791a. 

Mob  — 

Liability  of  county  for  injury  by,  §  2047. 
Civil  liability  of  county  for  injury  by,  §2133. 

Municipal  corporation  — 

(See  Change  of  Grade,  Sidewalk.  Streets.) 

Reasonable  care  required  in  construction,  maintenance  and  supervision 
of  sewer  system,  §  2064. 


N 


Negative  testimony  — 

Instruction  as  to,  p.  1291. 
And  affirmative,  §  1737. 


Negligence  — 

General  form  of  opening,   §§2087.  2089. 

Explanatory  instruction  concerning  duty  of  jury,  §  2088. 

No  presumption  of,  by  railroad  company  when,  §  2089. 


INDEX.  2213 

Negligence — Continued. 

Defined,  §§  2090,  2091,  2092,  p.  2111. 

Exists  only  when  duty  is  owing,  §  2093. 

Essential  elements  to  constitute,  §  2093. 

Imports  want  of  attention,  §  2094. 

Active  and  passive,  §  2095. 

No  element  of  purpose  or  moral  turpitude.  §  2097. 

Intent  not  an  element,  §  2098. 

When,  is  wanton,  §  2099. 

General  duty  of  everybody  becomes  a  particular  duty  to  single  person 

when,  §2100. 
Actions  for,  distinguished  from  nuisance,  §  2100. 
Cause  not  negligent  act  alone,  but  injury  proximately  from  breach  of 

duty,  §2101. 
Burden  of  proving,  §  2102. 

No  presumption  of,  against  either  party,  §  2105. 
Imputed,  §2117. 

Last  clear  chance  doctrine.  §  2120. 
Concurrent  negligence,   §  2121. 
Injury  to  passenger  by  derailment,  §  2123. 
Person  placed  in  sudden  peril,  §  2125. 
Law  holds  one  whose  conduct  causes  injury,  §  2127. 

Nature  of  man  to  protect  himself,  this  is  the  measure  of  duty,  §  2127. 
Injury  from  defective  gun,  §  2128. 

negligent  carrying  gun  causing  death.  §  2129. 
Of   owner   of   race   track    for    injury   to    driver   from   defect   of    track, 
§2130. 

negligence  of  defendant  to  proximately  cause  injury,  §  2131. 

diligence  required  of  plaintiff,  §  2132. 
Injury  from  natural  gas  explosion,   §  2134. 

from  failure  to  close  and  calk  pipes,  §2135. 
Injury  from  explosion  of  boiler,  §2130. 
Collision   between   street   car   and   steam   railway   engine   at  crossing, 

§2137. 
Causing    collision    between    cars    on    scenic    railway    in    public    park. 

§  2138. 
In  driving  traction  engine  by  unnecessary  driving  of  traction  engine 

frightening  horses  in  field,  §  1931. 
As  applied  to  drivers  of  auto  and  pedestrian  in  street,  p.  117i». 
Of  pedestrian  in  crossing  street,  p.   1181. 
Imminent  peril,  choice  between  hazards,  §  1532. 

Nuisance  — 

And  negligence  distinguished.  §2100. 
Comprehensive  view  and  definition  of,  §2140. 

another  form,   §2141. 

modern  statutory  definition,  §  2142. 


2214  INDEX. 

Nuisance — Continued. 

There  must  be  actual  injury — more  than  mere  tendency,  §  2143. 
Degree  of  annoyance  to  constitute,   §2144. 

Opening  or  excavation  in  street  adjoining  property  owner,  §  2145. 
Excavation   in  sidewalk  in   front  of  premises  by  contractor,   duty  of 

owner,   §  2146. 
Excavation  made  by  independent  contractor,  §2147. 
Traveler  on  highway  may  presume  city  has  performed  its  duty  with 

reference  to  streets,  §  2148. 
Rights  and  obligations  of  adjoining  landowners  to  each  other,  §  2149. 


o 

Ordinance  — 

As  to  passing  vehicles  and  carrying  lights,  §  1535. 
As  to  maintenance  of  gates  at  crossing,  p.  1403. 
Regulating  operation  of  street  cars  and  autos,  p.  2134. 

Ordinary  care  — 

Varies  with  circumstances,  §  1830. 
Defined,  §§2000,  2103. 

is  of  flexible  nature,  §  2006. 
Under  circumstances  of  peculiar  peril,  §§2098,  2104. 

P 

Parent  — 

Liability  of.  for  negligence  of  minor  son  driving  auto,  §  1542,  par.  9. 
And  son,  fraudulent  persuasion  to  make  beneficial  disposition,  §  1799. 

Partnership  — 

What  constitutes.  §  2150. 

may  he  inferred  from  acts  and  conduct,  §2151. 

burden  of  proving,  §  2152. 
Whether  general   agency  exists  between  nartners,   §  2153. 
In  one  transaction,  §  2154. 
Ostensible  partner,  §  2155. 

Right  of  surviving  partner  to  wind  up,  §2156. 
May  by  mutual  consent  orally  modify,  agreement.  §  2157. 

Passenger  — 

(See  Common  Carriers,  Railroads,  Street  Railways.) 
Pedestrian  — 

Negligence  of,  in  streets,   i;  L523,  par.  4. 

Relative  rights  of.  and  drivers  of  auto,  §  1523,  par.  5. 

Duty  of,  in  crossing  street,  §  1523,  par.  6. 


INDEX.  2215 

Pedestrian — Continued. 

Duty  of  driver  of  auto  to  negligent,  §  1523,  par.  7. 

Equality   of   right  of,   and   auto   driver,   §  1534,   pp.    1179-1180,    1184n, 

§  1533. 
Look  and  listen  crossing  street,  p.  1184n. 
Bound  to  be  alert  and  watchful,  p.  1184n. 
Mere  failure  to  look  not  negligence,  p.   1184m. 
Driver  of  auto  may  assume,  will  not  suddenly  turn  back,  §  1529. 
Going  unexpectedly  in  front  of  auto,  §  1530. 
Warnings  given,  causing  bewilderment,  §  1531. 
Placed  in  sudden  danger,  choice  between  hazards,  §  1532. 

Perjury  — 

Defined,  §2158. 

Materiality  of  statement,  §  2159. 

Willfully  and  corruptly,  §2160. 

Oath  to  be  lawfully  administered,  §  2161. 

Statements  believed  to  be  true,  §  2162. 

More  than  one  witness  required  as  corroboration,  §2163. 

Personal  property  — 

(See  Statutes  of  Limitation.) 
Annual  products,  §  2242. 
Growing  fruit,  §  2243. 

Of  property  by  vendor  when  vendee  insolvent  and  does  not  intend  to 
pay  for  same,  §  2244. 
financial  condition  of  vendee,  p.  2038. 
mortgage  on  property  fraudulently  brought,  §  2245. 
Chattel  mortgagee  may  prosecute  replevin,  when  mortgagee  attacked 
as  fraudulent,  §  2246. 

Physician  — 

(See  Malpractice.) 

Care  required  of,  §§  1996,  1998. 

Abortion  by,  see  Abortion. 

Pocket-picking  — 

Instructions  in  charge  of,  in  full,  §2164. 
Aiding  and  abetting,  §  2165. 

conspiracy,  p.  1957. 
Possession  of  property  recently  stolen,  §21W> 

Possession  — 

Of  property  recently  stolen,  §  2166. 

Premeditation  — 

(See  Homicide.) 


2216  INDEX. 

Preponderance  of  evidence  — 

Not  weighed  in  mathematical  scales,  p.  2044. 

Presumption  — 

That  every  person  exercise  care  for  his  own  safety,  §  2215. 

burden  on  defendant  to  prove  decedent  did  not  look  and  listen, 
§  2215. 

Presumption  of  innocence  — 

Full  instruction,  in  bribery,  p.  1288. 

Promise  — 

When  fraudulent,  p.  1559. 

Promissory  notes  — 

Burden  of  proof  when  consideration  attacked,  §  1561. 

Genuineness  of  signature,  §  1562. 

Purchase    before    maturity    without    notice    of    illegal    consideration, 
§  lf>63. 

Consideration,   delivery,   denial   of  execution,   alteration,  expert  testi- 
mony as  to  signature,   §  1564. 

Transfer  of,  after  maturity.  §  1565. 

Endorsement  in  blank,  transfer  before  maturity,  §  1566. 

Liability   of   BUrety   on,   how   reviewed,   effect   of   subsequent   promise, 
§  1567. 

Extension    of    note,    consideration,    payment    of    interest    in    advance, 
§  1568. 

Alteration,  adding  words,  etc.,  §  1569. 

by  adding  name  of  third  person,  §  1570. 

by  inserting  words  "to  be  paid  annually."  §  1571. 

Demand  and  notice  essential  to  hold  endorser,  §  1572. 

Endorsement  of,  notice,  §  1573. 

When  maker  of,  entitled  to  demand,  §  1574. 

Forgery  as  a  defense,  estoppel  to  set  up,  §  1575. 

Province  of  court  and  jury  — 

Relation  of  court,  jury  and  attorney,  zeal  of  counsel,  §  1456. 
Introductory  in  criminal  case — jury  and  court — attorneys,   §  1457. 
Appropriate  remarks  in  opening  of  charge,  §  1458. 

anotlver  form  of  opening  statement,  §  1459. 
Preliminary  admonitions  because  of  importance  of  case — bribery  case, 

p.  1263. 
Jury  cautioned  not  to  draw   inferences  from   rejected   testimony,   p. 

1264. 


INDEX.  2217 

Provocation  — 

(See  Homicide,  Manslaughter. ) 

Proximate  cause  — 

Defined  and  explained,  §§2106,  2107. 

Contributory  negligence  must  be.  §2110. 

In  auto  negligence,  §  1537. 

Differentiated  from  concurrent  negligence,  p.  1828. 

Puffing  — 

(See  Fraud.) 

R 

Railroads  — 

Joint  occupancy  of  sidetrack  by  two  companies,  §  2045. 

relation  of  servants  of  eacb,  §  2045. 

injury  to  servant  by  failure  to  inspect  track,  §  2045. 
Duty  to  persons  habitually  permitted  to  travel  over  tracks,  §  2217. 

common  use  of  tracks  as  public  passageway,  §2218. 
Injury   to   one  walking   on   tracks,   company   bound   to  give   warning 

after  discovery,  §2219. 
Duty  to  trespassers  on  track  after  discovery,  §  2220. 
Required  to  guard  against  fire  from  locomotive,  §  2221. 

negligent  communication  of  fire,  §  2222. 
Injury  to  stock  on  tracks,  §  2223. 
Misplacement  of  switch,  §  2225. 
Failure  to  block  frog,  §  2226. 
Omission  to  adjust  block  switch,  §  2227. 

Injury  to  person  on  depot  platform  from  mail  pouch,  §  2228. 
Injury  to  person  on  right  of  way  long  used  by  public  by  lump  of  coal 
falling  from  car,  producing  unconscious  condition,  being 
struck  by  yard  engine,  §  2229. 

no  duty  except  to  refrain  from  willfully  or  negligently  injuring 
(licensee)    after  discovery,  §2229. 

Railroads,  as  carriers  of  passengers  — 

Relation  of  carrier  and  passenger,  §  2167. 

As  carrier,  to  exercise  high  degree  of  care,  §2168. 

Passenger  must  observe  care  for  his  safety,  §  2169. 

Not  bound  to  carry  passengers  on  freight  trains,  §2170. 

Duty  to  furnish  safe  passage  to  and  from  trains,  §2171. 

When  failure  to  carry  passenger  safely  shown  burden  cast  on  carrier, 

§2172. 
Ticket  agent's  duty  and  authority,  reliance  upon  by  passenger,  §  2173. 
Duty   as  to   putting  off  passenger   at   destination    not   stopping  placo 

for  train,  §2174. 
authority  of  local  ticket  agent  to  bind  companY,  §  2174. 


221 S  INDEX. 

Railroads,  etc. — Continued. 

Right  to  eject  persons  for  failure  to  pay  fare,  §§  2175,  2176. 

when  unnecessary  force  used,  §  2176. 

drunken  or  boisterous  passenger,  §  2176. 

wrongful  ejection  through  error  of  judgment,  §  2177. 

measure  of  damages,  §2178. 
Duty  to  provide  safe  platform,  §  2179. 
Duty  to  passenger  boarding  train,  §  2180. 
Protection  of  passenger  from  violence,  §  2181. 

assault  not  committed  in  master's  business,  §2182. 
Stopping  trains  at  stations  for  passengers  to  get  off,  §§2183,  2185. 
Duty  of  passenger  falling  from  train,  §2184. 
Contributory  negligence  of  passenger,  §§2186,  2187. 
Right  of  passenger  to  remain  in  waiting  room,  §  2188. 
Negligence  of  sleeping-car  employee,  §  2189. 

Injury  to  conductor  riding  on  train  other  than  his  own,  §  2190. 
Liability  for  injury  to  passenger  assisting  sick  passenger,  §2191. 

Railroad  company  — 

(See  Master  and  Servant,  Railroads,  Railroad  Crossings.) 
May  make   rules  for  employees,   §  2041. 
liability  when  violated,  §  2042. 

Railroad  crossing  — 

Duty  of  driver  of  auto  at,  §  1540. 
Failure  to  provide  gates,  §  1678. 

or  to  give  warning,  p.  1402. 

failure  of  driver  and  occupants  of  wagon  to  look  and  listen  for 
approaching  train,  p.  1405. 

Occupant   of   wagon    having    right   to   direct   or    control   one    whose 
negligence   contributes    to   injury,    husband   and   wife,   p. 
1406. 
if  husband  or  wife  saw  or  could  have  seen  train,  p.  1407. 

misled  by  absence  of  flagman,  p.  1407. 

failure  to  ring  bell  or  sound  whistle,  p.  1407. 

vision  obstructed  by  buildings,  p.   1408. 
Assault  and  battery  by  flagman  at.  S  1499. 

Relative  rights  and  duties  of  pedestrians  and  company,  §  1499,  par.  4. 
Duty  of  flagman  at,  §  1499,  par.  .".. 
Relative  rights  and  duties  of  company  and  public  at,  §§2192,  2197. 

both  must  use  faculties  to  discover  danger,  §  2192a. 

duty  to  use  senses  on  approaching,  ^219:5. 

signals  when  approaching,  §§2194,  2195. 

omission  to  rinji  hell  and  sound  whistle.  §  2196. 

may  drive  on  when  train  standing  still,  §2197. 

failure  to  look  and  listen,  §2198. 


INDEX.  2219 

Railroad  crossing — Continued. 

Relative  rights  and  duties,  etc. — Continued, 
duty  to  give  warning,  §  2108. 
must  use  senses,  slacken  speed  or  stop,  p.  1992. 
duty   to   provide    safeguards   when   structures    render    dangerous, 

§2199. 
negligence  of  pedistrian,  §  2199. 
flagman  and  gateman,  p.  1994n. 
duty  of  driver  approaching  when  view  unobstructed  or  obstructed, 

§  2200. 
duty  when  flagman  gives  signals,  §  2200. 
injury  to  pedestrian  at,  §  2201. 

duty  when  there  is  temporary  obstruction,  §  2201. 
duty  of  one  driving  across,  §§  2202,  2203 
train  has  right  of  way,  §  2202. 
duty  of  engineer  in  approaching,  §  2204. 
Concurrent  miscalculation  of  engineer  and  driver,  §  2205. 
Duty  of  gateman  in  lowering  gates,  §  2206. 
Duty  of  driver  of  automobile  at,  §  2207. 
when  vision  obscured,  §  2207. 
may  rely  on  gateman  giving  notice,  §  2208. 
when  placed  in  sudden  peril,  §  2209. 
imputing  negligence  of  driver  to  occupant,  §  2210. 
Injury  caused  by  backing  train  on  vehicle  at,  §2211. 
Injury  to  child  climbing  over  train  stopping  at,  §  2212. 

contributory  negligence  of  child,  §2213. 
Shunting  cars  while  making  flying  switch  across,  §  2214. 
Liability   though    statutory   signals   given,   when   other   acts   charged, 
§  2216. 

Rape  — 

Defined,  §  2230. 

Consent  of  female,  §2231. 

Carnal  knowledge  complete,  when,  §2232. 

Capacity,  burden  when  under  fourteen,  §  2233. 

Evidence  as  to  character  of  woman,  §  2234. 

Resistance,  evidence.  §  2235. 

Assault  with   intent  to  commit,   S  2236. 

force,  consent,  §  2237. 

declarations  of  prosecuting  witness,  §2238. 

Ratification  — 

Of  agency,  see  Agency. 

Real  estate  commission  — 

(See  Broker.) 


2220  INDEX. 

Reasonable  doubt  — 

Defined,  rather  full  explanation  in  bribery  case,  p.  1265. 
another  form,  p.  1289. 
in  burglary,  p.  1328. 
in  murder,  §  1833. 
in  abortion,  aa  to  intent,  §  1466. 

Release  — 

(See  Compromise  and  Release.) 

Replevin  — 

Short  general  instruction,  §  2239. 

Of  property  of  wife  seized  on  execution  against  husband,  §  2240. 

ownership,  p.  2034. 

value  of  property,  p.  2034. 

damages,  p.  2035. 
Conclusion  of  charge,  §2241. 
Of  annual  products  of  the  earth,  §  2242. 
Of  growing  fruit,  §  2243. 
Chattel  mortgagee  may  prosecute,  when  mortgage  fraudulent,  §§  2245, 

2246. 
Of  hogs  by  wife  from  purchaser  on  execution  against  husband,  §  2246a. 
(Sec  llrsHAM)  and  Wife.) 

Reputation  — 

Of  defendant,   in  bribery,  for  honesty   and   integrity,  p.   1269. 
What  constitutes,  §  1731. 

must  be  general  in  community,  p.  1474. 

in  community  where  party  temporarily  resides,  p.  1475. 
Of  defendant  in  homicide  for  peace  and  quiet,  §  1837. 
Of  accusing  witness,  §  1583. 

Rescuing-  — 

One  from  danger,  injury  while  attempting  to,  contributory  negligence, 
§2126. 

Res  ipsa  loquitur  — 

Injury  to  passenger  by  derailment,  §2123. 
Burden  of  proof  when  injury  caused  by,  §  2124. 

Respondeat  superior  — 

Effect  of  disregard  of  orders  of  superior  servant,  §  2022. 

Conductor  and  brakeman,  §2023. 

Engineer  and  train  dispatcher,  §2024. 

Acts  done  by  order  of  superior  servant,  danger  obvious,  §  2026. 

Not  applicable  when  there  is  independent  contract,  §2134. 


INDEX.  2221 

Robbery  — 

Full  charge  in,  §  2247. 

Taking    property    in    presence    or    under    the    immediate    control    of 

another,  §  2248. 
Conspiracy  to  commit,  §§  2249,  2250. 

character  of  evidence  to  prove,  §  2251. 

independent  conspiracy,  §  2252. 
Assault  with  intent  to  commit,  §  2253. 

violence  concomitant  with  taking,  §  2253. 


s 

Sale  — 

When  complete,  §  2254. 
What  constitutes  valid,  §  2255. 
Fraudulent  contract  of,  §  2255. 
On  credit,  §  2256. 

statement  and  conduct  of  buyer,  p.  20G0. 

if  vendor  misled  or  takes  his  chances,  p.  2060. 
Representation  of  financial  condition  invalidating,  §  2257. 

insolvency  of  buyer — intention,  p.  2061. 
What  language  constitutes  warranty  in,  §  2258. 
Buyer  having  opportunity  to  inspect,  caveat  emptor,  §  2259. 
Recoupment  of  damages  where  vendee  used  property  under  warranty 

as  to  quality,  §2260. 
Notice  of  rescission,  when  necessary,  §  2261. 
Through  mistake  rescinded  in  action  for  purchase  price,  §  2262. 
Whether  delivery  of  wheat  to  mill  a,  §  2263. 

mixing  with  other,  p.  2065. 
Action  to  recover  purchase  price  on,  when  article  unsuitable,   rescis- 
sion, tender,  §  2264. 

acceptance  and  continued  use,  §  2265. 
Fraud  and  deceit  in,  §  2266. 

opportunity  of  inspection,  §  2267,  p.  2073. 

commendations — dealer's  talk,  g  2268. 

opinion  sis  to  amount,  value,  quality,  §  2269. 
Breach  of  warranty  in,  of  horse,  §  2270. 

Scienter  — 

Troof  of,  §  1494. 

Self-defense  — 

Assault  and  battery  committed  in,  §  1500. 
Plea  of,  in  assault  with  intent  to  kill,  S  L507,  par.  ;'. 
burden  of  proof,  degree  of  evidence,  §  1507,  par.  ;". 


2222  INDEX. 

Self-defense — Continued. 

Whether  defendant  believed  he  was  about  to  be  robbed — burden  on 

him  to  prove,  §  1871. 
In   protection   against   riotous   strikers   attempting   to   stop   defendant 

from  working,  §  1872. 
Burden  of  proving,  by  preponderance,  p.  1640. 
In  ejecting  one  from  saloon,  §  1873. 
What  constitutes,  another  form,  §  1874. 

When  one  may  take  life  of  an  assailant  in   (Giddings  case),  §  1875. 
Right  to  repel  assault,  §  1876. 
Son  may  defend  parent,  §  1877. 
Justifiable  homicide,  §  1878. 
Common  defense  from  attack,  §  1879. 

Services  — 

(See  Contract  fob  Personal  Services.) 

Settlement  — 

Of  cause,  see  Compromise  and  Release. 

Sidewalk  — 

And  cross-walks  to  be  kept  open  and  reasonably  safe,  §  2052. 

municipality  not  an  insurer.  §  2052. 
In  defective  condition  so  long  that  city  presumed  to  know  it,  §2056. 
City  not  liable  for  mere  Blipperiness  from  snow  or  ice,  §2057. 

otherwise,  when,  §  2058. 
City  t<>  keep,  in  reasonably  safe  condition.  §2060. 
Actual  or  constructive  notice  to  be  shown,  §§  2061,  2062. 
To  be  kept  in  reasonable  repair,  §  2062. 
Latent  defect  in,  actual  notice  to  be  shown,  §  2063. 
Obstruction  of.  when  building,  §  2086. 

city  may  permit  reasonable  part  to  be  used,  §2086. 

right  and  duty  of  traveler  to  use.  jj  2086. 

city  not  liable  unless  has  notice  and  knowledge,  p.   1889. 

Solicitation  — 

Of  bribe,  see  Bribery. 

Speed  — 

Excessive,  by  auto   approaching  crossing.    §  1532. 

Precautionary    instruction    as    to  description   of,   by   witnesses,    §1542, 
par.   14. 

duties    of    auto   drivers    as   to,    statutes   explained,    pp.    1204-1206. 

opinion  of  witnesses  as  to,  of  street  car,  p.  2141. 

Statutes  of  limitations  — 

Revival  of  debt  by  promise,  5  2070a. 

new  promise  to  be  in  writing.  §2271. 
On  account.  §  2272. 


index.  2223 

Stock  — 

Injury  to,  on  railroad  tracks,  §§  2223,  2224. 

Storage  — 

(See  Bailment.) 

Street  — 

Dedication  of  property  to,  §  2048. 

Interest  of  abutting  owner  in,  §  2049. 

Establishment  of,  by  general  use,  §  2050. 

May  be  improved  to  meet  needs  within  reasonable  discretion,  §2051. 

Pedestrians  to  use  care  in  passing  along,  §  2053. 

may  assume  city  discharged  its  duty,  §  2053. 
Defective,  becomes  nuisance  when,  §  2054. 
When  city  liable  for  defects  in,  constructive  notice,  §  2055. 
Liability  of  city  for  injury  to  traveler  from  stone  in  street,  §  2059. 
Actual  or  constructive  notice  to  be  shown,  §§2061,  2062. 
To  be  kept  in  reasonable  repair,  §  2062. 

Damages  to  property  owner  by  construction  of  street,  §  2084. 
Excavation  in,  negligence  in  making,  signals  or  lights,  §  2085. 

right  to  travel  subject  to  temporary  obstructions,  etc.,  §  2085. 

duty  to  guard  excavation,  p.  1887. 

Street  crossing-  — 

Equality  of  driver  of  auto,  and  pedestrian  at,  §  1523,  par.  5,  §  1533, 
•    §  1539,  pp.   1179-1180,   1184^. 

Street  railways  — 

High  degree  of  care  required,  §  2273. 

utmost  or  highest  degree  to  passengers,  §  2274. 

as  to  cars  and  appliances,  §  2275. 

bound  not  to  expose  passenger  to  hazards,  §  2276. 

incidental  hazards  assumed,  §  2276. 
Relation  of  passenger  on  acceptance  of  fare,  §  2277. 
Bound  for  acts  of  employees,  §  2278. 
Acceptance  of  person  as  passenger,  §  2279. 

relation  ceases  on  alighting,  §  2280. 
Starting  before  passenger  seated,  §2281. 
Injury  while  boarding,  §2282. 

duty  of  passenger,  p.  2086. 
Boarding  while  in  motion,  §§  2283,  2284. 

between  streets,  §  2285. 

contributory  negligence  boarding  moving  car,  §  2286. 
when  car  moving  slowly,  §  2286. 
Duty  to  stop  at  usual  stopping  places,  §2287. 

Passenger  on  signaling  attempting  to  board  before  it  stops,  §2287. 
Duty  to  stop   long  enough    to   afford    passenger    reasonable   Opportunity 

to  alight,  §2288. 
Dutv  to  assist  passenger  in  alighting,  §2289. 


2224  index. 

Street  railways — Continued. 

Passenger  injured  leaving  car  being  thrown  from  car,  §  2290. 

duty  of  carrier  and  passenger,  p.  2094. 
Duty  to  stop   car  when   desired   stop  communicated  to  conductor  on 

boarding  car,  §  2291. 
Injury  while  alighting  from  car,  §  2292. 

car  not  coming  to  clear  stop,  then  starting  suddenly,  §  2292. 
whose  negligence  proximate  cause,  p.  2097. 

burden  of  proving  contributory  negligence  in  such  case,  p.  2098. 
Stopping  car  for  passenger  to  alight,  duty  of  conductor,  §  2293. 

knowledge  of  conductor  of  intention  to  alight,  p.  2100. 
Injury  while  alighting,  by  catching  clothing  on  car,  §2294. 
Ejection  of  passenger  for  refusal  to  pay  fare,  §  -ll'.C). 
Damages  for  wrongful  ejection  of  passenger,   S  2290. 
Duty  to  travelers  in  street,  §  2297. 
Duty  to  use  ordinary  care  to  pedestrian,  §2298. 

Motorman  may  assume  that  pedestrian  will  get  out  of  danger,  §2299. 
Pedestrian  may  assume  motorman  will  use  due  care,  §  2:500. 
Ordinary  care  required  of  person  about  to  cross  track  at  street  cross- 
ing. §  2301. 
Injury  to  person  on  track,  §  2202. 

motorman  may   presume  pedestrian  will  be  prudent.  §  2302. 
plaintiff  may  presume  company  will  not  lie  negligent,  §2302. 
Relative  rights  and  duties  of  pedestrian  and,  in  streets,  §2303. 
Duty    when    ear   crossing   street    intersections   where   car   on   opposite 

track  discharging  passengers,  §2304. 
Duty    in    avoiding    injury    to    children    apparently    intending   to    cross 

street,  §  2305. 
Duty  of  parents  in  permitting  children  to  go  in  streets,  §2306. 
Injury  to  conductor  by  being  struck  by  telephone  pole  while  walking 
along  running-board,  §  2307. 
negligence  defined,  p.  2111. 

knowledge  of  danger,  assumption  of  risks,  p.  2112. 
legal  obligation  of  telephone  company,  p.  2113. 
alternative  findings  as  to  two  companies,  p.  2113. 
Injury  to  passenger  while  assisting  driver  of  street  car,  §2308. 
Bound  by  acts  of  conductor  and  motorman,   §  2309. 
Reciprocal  rights  of  vehicles  and  street  cars,  §  2310. 
Duty  of  driver  of  vehicle  to  look  before  crossing,  §2311. 
Duty   of  driver   to   stop   vehicle  before   crossing   track   when   car   ap- 
proaching, §  2312. 
Collision  between  vehicle  and  street  car  at  street  crossing,  §  2313. 

relative  rights  of  driver  of  vehicle  and.  at  street  crossing,  p.  2117. 
specific  questions  of  negligence  involved,  p.  2117. 
duty  of  driver  of  vehicle  in  exercise  of  correlative  right,  p.  2118. 
driver  may  assume  motorman  will  exercise  care,  p.  2118. 
failure  of  driver  to  use  care,  or  if  he  miscalculates,  p.  2119. 
duty  of  company  to  driver  of  vehicle,  p.  2119. 


INDEX.  2225 

Street  railways — Continued. 

Collision — Continued. 

motorman  may  assume  driver  will  exercise  care,  p.  2120. 
alternative  findings,  p.  2121. 
Injury  to  driver  of  vehicle  at  street  crossing,   another  form,   §  2314. 
relative  duties  of  each,  p.  2122. 
when  driver  may  undertake  to  cross  track,  p.  2123. 
conclusions  by  jury  as  to  conduct  of  plaintiff,  p.  2124. 
duty  of  company  to  persons  crossing  street  and  track,  p.  2124. 

whether  car  should  be  stopped,  p.  2125. 
conclusion  of  jury  as  to  conduct  of  defendant,  p.  2125. 
concurrent  negligence  of  both,  p.  2126. 
directions  as  to  verdict,  p.  2127. 
traffic  ordinance,  p.  2127. 
Injury  to   passenger  in   hired  automobile   from   collision  with   street 
car,  §  2128. 
neither  liable  for  negligence  of  other,  p.  2129. 
duty  of  motorman  and  driver  of,  p.  2130. 
reciprocal  duties  of  each,  p.  2131. 

duty  as  to  discovery  of  intent  of  driver  to  cross,  p.  2131. 
directions  as  to  verdict,  p.  2132. 

duty  of  driver  of  auto  to  its  passenger  in  crossing  track,  p.  2133. 
negligence  of  auto  driver  not  imputable  to  plaintiff,  p.  2133. 
ordinance  as  to  operation  of  cars,  and  autos,  p.  2134. 
statute  as  to  speed  of  auto,  p.  2135. 
direction  as  to  verdict,  p.  2135. 
damages,  p.  2136. 
Car  of,  colliding  with  auto  stalled  on  track  on  dark  night,  §2316. 
duty  of  railway  company,  p.  2137. 
duty  on  discovery  of  auto,  p.  2138. 
duty  of  person  in  charge  of  auto,  p.  2139. 
if  auto  driver  negligent,   railway  must  be  guilty  of  new  act  of 

negligence,  p.  2140. 
speed  of  car,  opinion,  p.  2140. 
Duty   of   motorman    on    meeting    horse   coming    in    opposite   direction 

becoming  frightened,  p.  2142. 
Duty  of  driver  of  wagon  in  crossing  track  at  street  crossing,  §•§  2318, 

2319. 
Driver  of  vehicle  arriving  in  advance  of  street  car,  has  prior  right  to 

cross,  §2320. 
Relative  rights  of  street  car  and  driver  of  vehicle  at  street  crossing, 

§2.321. 
Duty  of  motorman  to  discover  vehicle  about  to  cross  track  and  avoid 

injury,  §  2322. 
Contributory    negligence   of  children    at  crossings,   §2323. 
Presumption  of  negligence  from  collision.  §  2324. 
prima  facie  evidence  from  collision,  §  2325. 
When  person  to  be  treated  as  passenger,  §  2326. 


2226  index. 

Substantial  performance  — 
(See  Building  Contract.) 

Sudden  peril  — 

Conduct  of  person  placed  in,  §  2125. 
Rescuing  person  from,  §  2126. 

Sureties  — 

Liability  of,  on  bond  of  agent,  who  has  previously  defaulted,  §2327. 

Contract  strictly  construed,   §  2328. 

Creditor  accepting,  bound  to  inform  them  as  to  business  of  suretyship, 

§  2328. 
For  pre-existing  debt,  §  2328. 

Surgeon  — 

Liability  for  performing  operation  without  consent  of  patient,  §  1999. 

Switch  — 

Misplacement  of,  of  railroad,  §  2225. 
Omission  to  adjust,  fill  or  block  switch,  §  2225. 


Testimony  — 

And  evidence  distinguished,  §  1542,  par.  3,  p.  2043. 

credibility  to  be  first  determined,  p.  2043. 
Rejected,  jury  cautioned  not  to  draw  inferences  from,  pp.   1264,  1290. 
Negative,  p.   1291. 
Jury  not  at  liberty  to  indulge  in  capricious  disbelief  of.  §  1733. 

Traction  engine  — 

Frightening  horses  in  field  by  unnecessary  blowing  whistle  of,  §  21i 
driver  not  required  to  keep  on  lookout  for  horses,  p.  1932. 

Trespass  — 

(See  Statutes  of  Limitation.) 

Trespassers  — 

Habitually  using  railroad  tracks,   §§2217,  2218. 

On  railroad  track,  duty  after  discovery,  §§2219,  2220. 


V 

Vehicles  — 

(See  Street  Railways,  Railroad  Crossings.) 


index.  2227 

w 


Wanton  negligence  — 

Defined,  §  2099. 


Warranty  — 

In  sale  of  horse,  §  2270. 

express,  defined,  p.  2072. 

statement  of  opinion,  p.  2072. 

opportunity  for  inspection  and  examination,  p.  2073. 

damages,  p.  2074. 

Wealth  — 

As  an  element  of  damage,  §  1955. 

Wife  — 

(See  Husband  and  Wife.) 

Claims  to  stock  on  farm  of  husband,  p.  2044. 

must  rebut  presumption  of  ownership  by  husband,  p.  2044. 

Wills  — 

Who  may  make,  §  2330. 

Requirements  of  a  valid  will,  §  2331. 

Witnesses  need  not  see  it  signed,  §  2332. 

Declarations  of  testator  to  show  condition  of  mind,  §  2333. 

Instructions  to  jury  in  contest,  in  full,  §  2334. 

order  of  probate  prima  facie  evidence,  burden,  p.  2159. 

degree  of  proof,  probabilities,  p.  2159. 

capacity  to  make,  p.  2160. 

proof  of  undue  influence,  p.  2162. 

what  constitutes  undue  influence,  p.  2162. 

declarations  after  making  will,  p.  2164. 
Insane  delusion,  §  2335. 

Old  age  and  sickness  as  affecting  mental  capacity,  §  2336. 
A  concise  charge  in  will  contest  in  different  form,  §  2337. 

must  know  extent  of  property  and  objects  of  his  bounty,  p.  2170. 

provisions  of  will  to  be  considered,  p.  2171. 

need  not  be  technically  insane,  weakness  of  intellect,  p.  2171. 

undue  influence,  p.  2171. 

inequality  or  injustice  of  will,  p.  2172. 
Consideration  of  will   itself,  §  2338. 
What  if  anything  may  lie  inferred  from  will,  §2339. 
Moral  depravity  as  affecting  mental  capacity,  §2340. 

foolisb,  capricious  or  unjust  will,  p.  2174. 

mind  weakened  from  age,  excesses,  disease,  p.  2174. 


2228  index. 

Wills — Continued. 

Moral  depravity — Continued. 

knowledge  of  property,  p.  2175. 

dissolute  habits,  p.  2176. 
Undue  influence,  other  forms,  §§2341,  2342,  2343. 

persuasion  to  make  will,  flattery,  appeals  to  affection,  §  2343. 
Nuncupative  will,  words  written  down  not  those  spoken,  §  2344. 

Witnesses  — 

Criminal  charges  against,  p.  1269. 

Impeachment  of.  what  constitutes  reputation,  S  1731. 

Failure  to  call,  p.  1557. 

Work  and  service  — 

(See  Contract  fob  Personal  Service.) 


X 

X-ray  — 

Liability  of  physician  for  injury  caused  by,  §  2000. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  760  126    3 


